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Can Inadvertent Production of One Privileged Email Waive the Attorney-Client Privilege?

Posted on November 24th, 2014

Under the 8th Circuit Court of Appeals’ jurisdiction, when does counsel’s inadvertent production of a privileged email constitute waiver of the attorney-client privilege?  An Iowa district judge recently considered that issue in Pick v. City of Remsen, No. C 13-4041-MWB (N.D.Iowa, September 15, 2014).

In response to Plaintiff Pick’s requests for electronically stored information, Defendant City of Remsen produced 440 pages of documents, 183 pages of which contained printed emails.  The printed email pages contained more than one email per page, without any borders or other markings to indicate where one email stopped and the next began.  In reviewing the defense production, Plaintiff’s counsel noticed an obviously privileged email from defense counsel to the City’s Utility Board members.  Rather than contact opposing counsel and inform them of the inadvertent production, Plaintiff instead served a supplemental discovery request based on information learned from the email.

Counsel for the City contacted Plaintiff within an hour of receiving the supplemental discovery request to tell him that the email was subject to the attorney-client privilege and had been inadvertently produced.  The parties disagreed about whether the email should be destroyed or could be properly redacted.  After a hearing, the magistrate judge ordered Plaintiff to destroy all copies of the email.  Plaintiff appealed the magistrate judge’s order.

Applying a clearly erroneous standard to its review of the order, the court agreed with the magistrate’s application of a “middle of the road” or Hydraflow approach to determine possible waiver of the attorney-client privilege due to inadvertent production (based on Hydraflow, Inc. v. Enidine Inc, 145 F.R.D. 626, 637 (W.D.N.Y. 1993).  The court reviewed the magistrate judge’s application of Hydraflow’s five-step approach as follows:

  1. The reasonableness of the precautions taken to prevent inadvertent disclosure.  Plaintiff asserted, among other things, that Defendant’s failure to prepare a privilege log evidenced a lack of reasonable precautions taken.  The court rejected that contention, agreeing with the magistrate judge’s conclusion that it was reasonable for Plaintiff’s counsel to not prepare a privilege log when counsel did not believe any relevant privileged documents existed.  The district court also agreed with the magistrate judge that it was not unreasonable to have only one lawyer review the entire production.
  2. The number of inadvertent disclosures.  Because only one email out of 183 pages was inadvertently disclosed, the court agreed that this factor weighed in favor of non-waiver.
  3. Extent of disclosures. The magistrate concluded that this factor actually favored waiver because the entire contents of the email were disclosed to Plaintiff’s counsel; the district court found the magistrate judge’s finding was not clearly erroneous.
  4. The timeliness of rectifying matters. Defense counsel contacted Pick only 34 minutes after receiving notice that the email was inadvertently produced.  The district court agreed with the magistrate judge weighed heavily in favor of non-waiver.
  5. Overriding interest in justice. The district court noted that the email was “classic legal advice,” and that while Plaintiff might have some hardship in not being able to use it for possible impeachment, any hardship was not outweighed by the injustice of stripping the document of its privileged status.

Based on its review of these five factors, the District Court affirmed the magistrate’s order to destroy the privileged email.

ILS – Plaintiff Electronic Discovery Experts

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