May 03, 2023 Practice Points

Steering Clear of Witness Minefields, Part III: Inadvertent Production of a Privileged Document

When the inadvertent production of a privileged document occurs, remember that the rules of evidence and procedure, as well as the ethics rules, provide important guidance.

By Paul Mark Sandler, Bruce A. Green, and John M. Barkett

During pretrial discovery in a civil case, the plaintiff’s attorney receives in document production a letter from the defendant to his attorney. This letter has helpful information for the plaintiff’s case, and plaintiff’s counsel decides to use this document in cross-examining an adverse party. Any ethical issues?

The Proper Response to Inadvertent Production

ABA Model Rule 4.4 provides that "[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender." Comment 3 to Model Rule 4.4 indicates that, “unless other law requires otherwise, a lawyer who receives an inadvertently sent document ordinarily may, but is not required to, return it unread, as a matter of professional judgment.” See ABA Comm. on Prof’l Ethics and Grievances, Formal Op. 06-442 (2006); see also Formal Op. 06-440; Formal Op. 05-437 (2005). This standard represents a departure from the ABA’s former position, which held that a lawyer should not use inadvertently produced materials, and should return them.

In the scenario above, do the circumstances suggest an advertent production of the privileged letter? It may be imprudent to take the risk. Cf. Rico et al. v. Mitsubishi Motors Corp. et al., 42 Cal.4th 807, 171 P.3d 1092 (2007). In this case, the California Supreme Court disqualified counsel who had reviewed privileged information. The court set forth this rule:

When a lawyer who receives materials that obviously appear to be subject to an attorney- client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.

171 P.3d at 1099. In affirming the trial court’s order of disqualification, it then held that the damage caused by the receiving lawyer’s “dissemination and use” of the document was “unmitigable.”

The Application of the Federal Rules

Model Rule 4.4 does not determine whether an inadvertent production waives the privilege. Assuming that there is not a stipulation among counsel to return, or a protective order that provides for the return of, inadvertently produced privileged documents, litigants should be aware of Federal Rule of Evidence 502. First, it provides that such a protective order would insulate the parties from a waiver claim from third parties. Second, it provides that inadvertent disclosure of a communication or information covered by the attorney-client privilege or work-product protection does not waive such privilege or protection, if “the holder of the privilege or protection took reasonable steps to prevent disclosure”; and “the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).”

Rule 26(b)(5)(B) provides:

If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

For a lengthier discussion of Rule 502, see Barkett, J., “Evidence Rule 502: The Solution to the Privilege- Protection Puzzle in the Digital Era,” 81 Fordham L. Rev. 1589 (2013).

Paul Mark Sandler is of counsel with Shapiro Sher Guinot & Sandler in Baltimore, Maryland. Bruce A. Green is the Louis Stein Chair at Fordham University School of Law in New York City, New York. John M. Barkett is a partner with Shook, Hardy & Bacon in Miami, Florida.

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