Inadvertent discovery disclosure is governed by Fed.R.Civ.Pro. 26. It is not entirely uncommon for a paralegal, support staff or even attorneys to mistakenly produce documents or electronic data that is protected by attorney-client privilege. However, when it does happen, it can easily lead to ongoing disputes over the production. One such case is Woodward v. Victory Records, No. 11CV 7594 (N.D. Ill. November 7, 2013).
In this case, the plaintiff ESI production was tendered to defendants, and there was a gap in the Bates numbering for certain email threads that plaintiff claimed were protected by work-product and attorney-client privilege. Defendant’s counsel noted this gap, and inquired to plaintiff’s attorney. Plaintiff’s attorney was out of town, so he asked his legal assistant to send him the emails in question to review. However, the assistant inadvertently sent the emails to both the plaintiff and defense attorneys.
Plaintiff’s attorney therefore wrote a letter to the defense in accordance with Fed.R.Civ.Pro. 26(b)(5)(B); asking him to destroy the inadvertent production (also known as a “clawback”.) However, about a year later in an oral deposition, the defense attorney began questioning a witness about the emails. Plaintiff objected to the line of questioning, and Plaintiff filed a motion to prohibit the defense from using the emails. Defendants filed a motion seeking a ruling that the emails were fair game since they were circulated to a third party. Plaintiff replied that the third party who received the emails was an agent of the plaintiffs, therefore the privilege remained.
The question before the court was whether the third-party who received the emails broke the “confidentiality” of the emails to prevent the attorney-client privilege from attaching. The court noted that an exception to the general rule of a third party disclosure breaking confidentiality is if the third party is an “agent” of the client. Therefore, the case turned on whether this party was an “agent” of plaintiffs.
After an intensive factual inquiry, the court determined that the third party was a mere “consultant,” and not an “agent.” Therefore, the email threads and email chains that included him were not confidential and not protected by privilege. However, the emails that did not include him were properly protected by privilege and could therefore not be used by the defense.