Little mistakes; big consequences. The possibility of catastrophic consequences from the inadvertent disclosure of confidential or privileged documents makes litigators cringe. The proliferation of large e-discovery productions that make manual review unfeasible increases the risks of a misstep.
F.R.E. 502 and F.R.C.P. 26(b)(5)(B) provide an effective mechanism for mitigating these concerns. The Pennsylvania rules, however, do not provide similar procedures. Counsel can nevertheless minimize the consequences of inadvertent disclosure by importing federal practices into Pennsylvania litigation.
The most common formulation of the attorney-client privilege provides that a communication is privileged if it is made between an attorney and client, in confidence and for the purpose of obtaining or providing legal assistance for the client. A communication is only privileged if made “in confidence” and so communications made in the presence of third-parties are not privileged. The corollary to this rule is that if an otherwise privileged communication is subsequently disclosed to a third party, it is no longer confidential and, thus, the privilege is waived. The Rules of Professional Conduct require an attorney to “make reasonable efforts” to prevent disclosure of a client’s privileged communications and, more broadly, any information “relating to the representation of the client.”
Disclosure of privileged communications to third-parties, and the potential for waiver that accompanies it, can result in the material being used against the client with significant adverse results. The risk of inadvertent disclosure is magnified in the era of electronic discovery. Even a relatively straight-forward commercial case may involve millions of pages of emails. Economic and time constraints may make it impractical to review each document and even a well-conceived strategy for electronically identifying privileged communications may not catch everything. Such circumstances make it likely, if not inevitable, that an attorney will face an inadvertent disclosure situation at some point in their career.
F.R.E. 502(b) limits the circumstances where an inadvertent disclosure acts as a waiver of attorney-client privilege. It provides that a disclosure is not a wavier of privilege if it is inadvertent, the holder of the privilege took reasonable steps to prevent the disclosure and the holder took reasonable steps to rectify the disclosure. F.R.E. 502(d) authorizes federal courts to issue orders addressing the waiver of privilege and confidentiality occasioned by, among other things, the inadvertent disclosure of discovery documents. A Rule 502(d) order is typically prepared by the parties and submitted to the court as a consent order. A well-crafted 502(d) order should make clear that production of a privileged document, regardless of the provisions of 502(b), is not an automatic waiver of privilege. It should also establish a procedure for handling the inadvertent disclosure of privileged or confidential documents by requiring that a disclosing party notify the opposing party of the inadvertent disclosure, allowing the receiving party to challenge the privilege designation and maintaining the confidentiality of the document until such challenge is resolved. Absent a 502(d) order, or working in concert with it, F.R.C.P. 26(b)(5)(B) provides the ability to “claw back” inadvertently disclosed information by requiring a receiving party to return or destroy privileged information produced in discovery.
The Pennsylvania Rules of Evidence do not contain a counterpart to F.R.E. 502. In 2013, the Committee on the Rules of Evidence conformed Pennsylvania’s evidentiary rules to the 2011 restyled Federal Rules of Evidence. The substance of F.R.E. 502, however, was not incorporated into the Pennsylvania rules. In 2014, the Committee on the Rules of Evidence proposed a comprehensive Pennsylvania version of F.R.E. 502, modified to address Pennsylvania’s waiver standards. This proposal has yet to be adopted. Similarly, the Pennsylvania Rules of Civil Procedure do not contain any substantive equivalent to F.R.C.P. 26(b)(5)(B). In the absence of the structure the federal rules provide, state court litigants must make additional effort to prospectively mitigate the consequence of inadvertent disclosure.
Developing an appropriate state-court strategy for handling inadvertent disclosures begins with an understanding of Pennsylvania’s approach to such disclosures. Until recently, there were few Pennsylvania appellate decisions addressing inadvertent disclosure. Disclosure meant waiver, with a few exceptions. In 2007, the Superior Court clarified Pennsylvania’s approach to waiver associated with inadvertent disclosure. In Carbis Walker, v. Hill, Barth and King, 930 A.2d 573 (Pa. Super. Ct. 2007), the Superior Court adopted the federal “reasonableness” approach to waiver by holding that whether an inadvertent disclosure is a wavier depends on: “The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; the number of inadvertent disclosures; the extent of the disclosure; any delay and measures taken to rectify the disclosure; and whether the overriding interests of justice would or would not be served by relieving the party of its errors.”
The Pennsylvania approach to inadvertent disclosures, as refined in Carbis, requires that care be taken both before and after the inadvertent disclosure. Although the Pennsylvania rules do not contain a counterpart to F.R.E. 502(d), there is no prohibition against the parties agreeing on and submitting a Rule 502(d)-like order to a Pennsylvania court. The proposed order should include a statement that an inadvertent disclosure does not constitute a wavier, regardless of the reasonableness of precautions or the other Carbis factors. Just as in the federal practice, such an order should provide a procedure for handling inadvertently disclosed materials, challenging their designation and providing confidentially in the interim. The order can also replicate the “claw back” that F.R.C.P. 26(b)(5)(B) provides. Even if a state court is unwilling to issue such an order, simply having the agreement between the parties helps to establish that the parties are taking reasonable precautions to preserve privilege and confidentiality.
Some commentators and courts have suggested that with the protections of F.R.E. 502, counsel can simply “data dump” discovery responses without attempting to prevent disclosure of privileged documents. While such an approach is possible, there is little to suggest that it has been widely adopted in practice. Making a document production, even a large e-discovery production, without making any effort to cull privileged or confidential information does not comply with the ethical requirement of “making reasonable efforts” to prevent disclosure. Moreover, not knowing whether information has been released could potentially expose the client to harmful or embarrassing cross-examination at deposition or trial. Although a proactive strategy for addressing inadvertent disclosures may prevent a receiving party from formally using a privileged communication, nothing can erase opposing counsel’s memory. Ultimately, “reasonable efforts” require work to prevent the disclosure of privileged and confidential information. If manual review is not feasible, reasonable efforts may, at a minimum, include document filtering based on email extension, time period or by keyword.
It is expected that despite all reasonable efforts mistakes can and do happen. In the context of large e-discovery productions, the issue is not whether an inadvertent disclosure will be made, but when. A prospective plan for addressing inadvertent disclosures should help counsel sleep a little better.
Reprinted with permission from the January 21, 2020 issue of The Legal Intelligencer. © 2020
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