Lawyers and clients are awash in electronic data and documents, and much of our lawyer life involves receiving, viewing, sharing and sending this stuff to clients, opposing counsel, courts
The realization that this problem is on your doorstep can bring elation or fear, or sometimes both, depending on what the document is or says. Is it the smoking gun that destroys your opponent’s case? The errant note by the opposing party in a deal to their lawyer that lays out their secret negotiating strategy? Or has your client brought you a very interesting document that looks like it may have been stolen? What do you do—especially when you need a very quick answer to the problem?
If this hasn’t happened to you yet, it will soon enough.
Redefining the Problem
I’ve thought for quite some time that many lawyers—and the rules themselves—define the problem too
I intentionally cast the net wider. I include inadvertently produced privileged documents, sensitive information received in unusual or murky ways from opposing parties or third parties and even stolen documents received by a lawyer or his or her client.
I doubt I need to remind you of all the dire consequences that can befall lawyers in these situations, but they have included lawyer disciplinary sanctions, court sanctions of the lawyer or client, monetary penalties, lawyer disqualifications, adverse inferences, dismissal of cases, claims (e.g., invasion of privacy) and even criminal charges.
My premise is straightforward: What we do as lawyers requires us to identify problems that are of a common type, so that we can address them in a similar way. This “problem” here is usually too narrowly defined. If you define the problem more broadly, you can more readily spot it. When you define the problem more broadly, a common set of issues arises across a broader array of situations, and there are common approaches to handling these situations.
So let’s try defining the problem this way: What do you do when you have data or documents that someone has claimed, or may claim, that you or your client should not have, usually (but not always) when the documents might somehow help you or your client?
Exactly what kinds of problems are we talking about? Any occasion on which you wind up in possession of—or with your client in possession of—documents or data you (arguably) shouldn’t have.
Suppose you receive ...
- A misdirected fax or email.
- A privileged document nestled amid a document production.
- A flash drive that contains some very interesting documents about your opponent.
- An unreleased confession of a criminal defendant.
- A transcript of the grand jury testimony of a witness.
- A misplaced or stolen laptop (or iPad) of your opponent or your opponent’s lawyer.
- An email or memo by an employee of your client to his or her lawyer, one retrieved from the employer’s computer system.
- A shoebox full of recordings of phone conversations, or maybe voicemails, brought to you by your client, the wife in a divorce case.
- The iPhone of a married politician’s former lover given to your newspaper client’s reporter by the former lover.
The Customary Questions
Our usual questions in these kinds of situations are: (1) Does the lawyer have some obligation—ethical or otherwise—as a result of having this kind of document or information? (2) How can the lawyer or the client use the document or information—if they can use it at all—often in litigation?
What are the sources of law that might guide decision making on these questions? They include:
- Ethics rules and interpretations of them, particularly ABA Model Rule 4.4 as adopted in some states. Other rules also may provide some very limited guidance on what we have to do when we get inadvertently produced privileged, confidential or stolen documents.
- Attorney-client privilege law, both on the scope of privilege and its waiver—e.g., Federal Rule of Evidence 502 and similar state rules, which vary a good bit.
- The law on other privileges or confidentiality.
- A whole welter of other laws on information privacy wiretapping, the federal Computer Fraud
andAbuse Act, and Stored Communications Act, as well as trade secret law, both state and federal.
It’s easy to get lost in this legal morass—to be confused about what laws might apply or which issues need to be addressed first and which can be avoided.
The Five Key Questions
When faced with such a problem, I propose you work through five key, somewhat overlapping questions.
1. What is the argument that you, as a lawyer, or your client shouldn’t have this document or data?
When whoever might be unhappy with you or your client having this information learns that you have it, what legal argument will they raise about why you or your client shouldn’t have it? Will they say it’s privileged in some way, or protected work product or a trade secret?
And what is the source of the law (if any) that somehow suggests that you or your client should not have the document?
This does require speculation. In my experience, however, it’s critical to try to answer this question first. It’s sometimes harder than you might imagine.
This is the point where you should probably get help—perhaps from someone experienced in legal ethics and privilege law but maybe from a trade secrets lawyer if you think you’ve just been handed the other side’s competitively sensitive secret formula for the product.
2. Is actual possession of the document or data unlawful for the lawyer or for the client?
This may sound silly and, more often than not, the answer is no. Still, there are rare situations when having the documents or information in your hands will be like holding illegal drugs. Mere possession, however innocent, of child
3. Was there misconduct or illegality of any kind by the lawyer or client in obtaining or receiving the document or data?
Did you, as a lawyer, or did your client engage in any misconduct or illegality in connection with getting the document or data? You probably will care considerably less about impropriety that someone else engaged in (e.g., a disgruntled court clerk who disclosed a sealed court document or an angry former employee who stole or disclosed trade secrets), but you will have to explore this. I guarantee your opponent will care. But
4. Is there any law that precludes or permits the lawyer or client from using the document or data in some way?
Many laws prohibit the use of certain data in certain ways. The most prominent examples are federal and state wiretap laws that include strict exclusionary rules on
Other laws, from HIPAA to the Fair Credit Reporting Act, may also include such provisions, which is one reason it’s critical to know from whence the argument will come that you should not have the information or document.
Remember, however, that there are also laws that specifically permit use. The most prominent example may be the law governing waiver of privilege (e.g., Federal Rule of Evidence 502).
5. Is there any law (including ethics rules) that requires the lawyer or the client to do anything because they have the document or data?
Of course, this is where the discussion customarily begins. You must review ethics rules or opinions, such as the guidance in ABA Model Rule 4.4. The usual guidance is that, on realizing the inadvertently produced document is or may be privileged, the lawyer must stop his or her review, notify the sender or owner and return the document or follow the owner’s instructions or approach a court for guidance.
But these rules are often of only limited help. They may say nothing about the document you received because it’s a closely guarded trade secret but not attorney-client privileged. Or the information may have been intentionally provided. Or the rule may not speak to the situation where your client—not you—has received someone else’s HIPAA-protected personal health information. This is the primary reason I cast our net, defining the problem wider.
Answering these five key questions will allow you to decide the substantive legal questions of whether and how you or your client may use the document, and what obligations you may have in doing so. However, you also need a method of approaching these problems as well.
The Rules of the Road
Every experienced driver knows not only the formal rules of the road but those customs that are likely to keep you away from tickets and out of ditches. From experience counseling lawyers and clients who have received potentially troublesome documents, I suggest a few tried-and-true rules that will do the same for you and your clients.
1. Get help.
No, really, get help. You might call an ethics nerd. But if you stumble on what you think might be child porn, enlisting a criminal-defense lawyer might be more useful. A health-care lawyer might be invaluable if
Still, even if you know the law, find someone whose judgment you trust to walk through the problem with you. There is no substitute for a smart, objective, independent sounding board.
2. Move very carefully.
Take only one step at a time. These problems can be hard; sometimes unexpected things happen; move deliberately, carefully. If a golden thread runs through the cases in this area, it’s this: Lawyers who try to act correctly and also appear to be trying to do the right thing—getting help, approaching the court when appropriate—get treated much better by courts and disciplinary agencies. Their clients also get treated much better.
3. Fully document your steps...
...including how the document or data came into your possession, or your client’s, and especially your good-faith efforts to “do the right thing.” Do this from the very first moment you see the problem. Act as if you expect that, someday, somewhere, someone is going to ask you why you approached the problem the way you did. You need to be able to “show your work,” just like you did in high-school math. You may well later need those notes to help prepare an affidavit explaining to a judge why you and your client should not be sanctioned. Keep notes; send yourself emails; whatever it takes.
4. Think creatively.
There is no cookbook and no single right answer.
Years ago a lawyer hired me before opening a sealed envelope he had gotten anonymously. He told me, “I got a sealed envelope. I think it’s got stuff in it that might be useful to me in a case. But I’m worried it might have some privileged stuff in it. I want you to open it and review the contents. If anything in there is privileged, keep it and never give it to me or tell me about it. If there’s nothing privileged, I want you to send it to me. And send me a bill.”
That lawyer had hired me as a low-tech “taint team,” like those federal prosecutors sometimes use to sort producible from privileged seized documents and keep privileged stuff away from their trial teams. When you get this kind of problem, be that guy.
Five questions and four rules of the road. Try them. And be careful out there.