September 19, 2017
In the event of inadvertent disclosure of documents (electronic or otherwise), an attorney is ethically obligated to promptly notify the sender of the attorney’s receipt of the documents. It is then up to the sender to take any further action.
The Federal rules also provide that a party must promptly return, sequester, or destroy the specified information and not use or disclose the information until the claim of privilege (or waiver of privilege) is resolved. Further, the Federal rules provide that a disclosing party must take reasonable and proactive steps to retrieve the information if the disclosure is discovered before being notified by the receiving party.
Some recommended actions to take when receiving a privileged document from opposing counsel may include:
- Stop reading the document(s) immediately;
- Draft a memo regarding the facts of how the documents were received;
- Sequester and secure the documents (assure the container/envelope containing the documents is sealed and a chain of custody log is created);
- Draft a letter to the producing attorney giving notice and requesting an immediate response as to a claim of privilege, and;
- Offer the producing attorney an opportunity to inspect the documents under supervision.
As for preventing the inadvertent production of documents, some recommendations include:
- Implementing reasonable precautions to prevent the inadvertent disclosure of privileged documents in the first case;
- Carefully reviewing all documents for the privilege;
- Once privileged documents are discovered and the determination is made that they will not be produced, set the documents aside in separate folder clearly labeled “Privileged Documents,” along with a copy of the privilege log identifying all documents;
- Double-check documents being produced prior to producing them (this is especially a good idea if you are having the documents copied and/or scanned by a third party), and;
- Act quickly to rectify an inadvertent disclosure as soon as it is discovered.
In summary, when dealing with the inadvertent disclosure of documents, you must be proactive and act quickly in order to control any damages that could result.