Tag: attorneys

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
ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Some attorneys treat defending a deposition as an opportunity to be a jerk. Speaking objections, witness coaching and bogus instructions not to answer are all arrows in the quiver of the “Rambo” litigator. The Federal Rules of Civil Procedure, their state equivalents and the rules of professional conduct generally prohibit this conduct. The Federal Rules, for example, expressly authorize district courts to impose sanctions for this type of behavior. Indeed, since Rule 30 was amended in 1993 to add an express prohibition on this conduct, federal courts throughout the country have demonstrated a willingness to crack down on these tactics.

Less discussed is the responsibility of an attorney defending a deposition to affirmatively intervene to prevent their witness’ misconduct. Although there are relatively few cases that address the issue, they make clear that counsel has an obligation to take affirmative steps to protect the integrity of the deposition by reining in their own Rambo witnesses. 

The Delaware Supreme Court’s recent decision in In re Shorenstein Hays-Nederlander Theatres Appeals, (Del. June 20, 2019) addresses the issue at length. There, a deponent engaged in a series of obstructionist and bad faith behaviors during her nine-hour deposition. Reviewing substantial portions of the transcript, the court concluded that her responses were “flagrantly evasive, nonresponsive and flippant” and that the deposition was “a colossal waste of time and resources.” The court sua sponte endorsed the lower court’s award of attorney fees against the client for the deponent’s conduct notwithstanding the fact that the sanction was not challenged on appeal. The court, however, did not limit its criticism to the witness; it chastised her counsel for failing to stop the misconduct. Analyzing counsel’s obligations under the Delaware Principles of Professionalism, the court held that “an attorney representing a client who engages in obstructionist behavior during the course of a deposition cannot simply be a spectator and do nothing.” It emphasized that defending counsel has an ethical obligation to ensure the integrity of the deposition and must affirmatively intervene to prevent their client’s bad-faith tactics.

The Delaware court analyzed counsel’s conduct through the lens of Delaware’s ethical rules, but the Federal Rules impose similar obligations. In Luangisa v. Interface Operations, (D. Nev. Dec. 5, 2011), the court evaluated the conduct of counsel in defending the deposition of his client It found that counsel engaged in a variety of obstructionist behavior by making speaking objections, questioning plaintiffs counsel on the record and instructing the client not to answer without any basis to do so. In many instances, the deponent, without specific prompting from his counsel, refused to answer questions without justification. The court sanctioned the client for both his and his counsel’s obstructionist behavior. It went further, however, chiding defense counsel for failing to intervene and stop his client’s misbehavior: “It is not enough for an attorney to refrain from instructing a client not to answer. In fulfilling his or her duties as an officer of the court an attorney must take some affirmative step to ensure the deponent complies with deposition rules.”

 Perhaps the most detailed analysis of an attorney’s obligation under the Federal Rules to intervene is set out in GMAC Bank v. HTFC, 248 F.R.D. 182 (E.D. Pa. 2008).  n HTFC, the defendant’s principal “sought to intimidate opposing counsel by maintaining a persistently hostile demeanor, employing uncivil insults, and using profuse vulgarity” throughout his nearly 12-hour deposition. In reviewing the deposition transcript the court noted that the deponent “used the word ‘f***’ and variants thereof no less than 73 times; to put this in perspective—in this commercial case, where plaintiff’s claim is for breach of contract and the defendant’s counterclaim is for tortious interference with contract—the word ‘contract’ and variants thereof were used only 14 times.” The court sanctioned the deponent for his behavior.

The court went on to analyze defending counsel’s obligation to intervene under Rules 30 and 37. Rule 37(a)(5)(A) authorizes a court to assess fees against a “deponent whose conduct necessitated the motion [to compel response], the party or , or both.”  Rule 30(d)(2) authorizes the court to “impose an appropriate sanction–including the reasonable expenses and attorney’s fees incurred by any party–on a person who impedes, delays, or frustrates the fair examination of the deponent.” On their face, both rules appear to allow the imposition of fees against an attorney only when he or she “advises” a deponent to engage in obstructive behavior or otherwise acts affirmatively to “impede,” “delay,” or “frustrate” the deposition. The court in , however, held that failure to intervene in the face of severe and pervasive violations of the Federal Rules was the functional equivalent of advising the misconduct and actively interfering with the deposition. Unlike the courts in either or , the court in imposed sanctions against defending counsel that were separate from and in addition to those imposed on the client.

While the obligation to intervene is not precisely defined, attorneys falling short of their obligation have a certain I-know-it-when-I-see-it quality. Indeed, efforts to precisely define the scope of the obligation may be of only academic interest. The conduct at issue in these cases, particularly HTFC, is so extreme that the courts’ silence-as-endorsement approach seems necessary for the orderly administration of civil litigation.

The threat of sanctions and ethics violations aside, attorneys defending depositions have an obligation to prepare their witnesses for their depositions. Witnesses that provide the persistently evasive responses of the witness in Shorenstein or that tell opposing counsel to “shut the f*** up” like the witness in HTFC do not improve their cases. This behavior is likely to reach the jury and the ubiquity of video depositions only magnifies the negative impact of an obnoxious witness. As the court in Shorenstein suggests in closing, the best way to a defend a deposition is with a well-prepared witness. Indeed, if a witness is well prepared, a defending attorney should be able to sit back and watch with pride without temptation to engage in Rambo tactics or any need to prevent the witness from doing so.

Reprinted with permission from the July 2, 2019 issue of The Legal Intelligencer. © 2019 
ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.