The Advantages of Contacting Opposing Counsel 34 Minutes After Inadvertent Disclosure of One Email

Ahhhhhhh!!What happens when a lawyer inadvertently produces an email protected by the attorney-client privilege? A Magistrate Judges and District Court Judge orders the receiving party to destroy the inadvertently produced email.

Iowa is the home of where John Atanasoff invented the first computer in 1939. It is also the home of Federal Judges who conduct excellent legal analysis of whether an inadvertent production waives the attorney-client privilege over an email.

Defense counsel inadvertently produced a privileged email and once learning of the production, called Plaintiff counsel within 34 minutes. Pick v. City of Remsen, 2014 U.S. Dist. LEXIS 128411, at *2-4, 11 (N.D. Iowa Sept. 15, 2014).

The Plaintiff refused to destroy the email and instead offered to redact the attorney-client advice.

The Court applied the following test for determining whether a privilege had been waived:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production,

(2) The number of inadvertent disclosures,

(3) The extent of the disclosures,

(4) The promptness of measures taken to rectify the disclosure, and

(5) Whether the overriding interest of justice would be served by relieving the party of its error.

Pick at *7-8, citing Gray v. Bicknell, 86 F.3d 1472, 1484 (8th Cir. 1996), (citing Hydraflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993)).

The Court spent the most time analyzing the reasonableness of the precautions Defense counsel undertook to preserve the confidentiality of the email message. The Court quickly dismissed the argument it was unreasonable to not include a privilege log, since the attorney did not find any privileged emails in his review. Pick at *8.

The inadvertently produced email was “inconspicuously located among various non-privileged email messages.” Pick at *7-8.

The Court summarized that the defendants provided their attorney with 440 pages of documents. This included 183 email messages, with some pages containing more than one email. Id.

The suspect email was under a non-privileged email and started in the middle of a page that ran onto the next page. There was no marking that the email was privileged. Moreover, the printed email had no borders defining where one email began and the other began. Id. 

The other factors were quickly decided in favor of the producing party, given that this was only a single message and it took less than an hour for the attorney to catch the inadvertent production. Pick at *9-12.

The Court held the email contained “classic legal advice that should be protected by the attorney-client privilege” and ordered the receiving party to destroy the inadvertently produced email.

Bow Tie Thoughts

The Court made the right decision in this case. However, part of the reason the production happened was because the production was on paper (based on the content of the opinion). If the discovery had been reviewed in a review application, there is a high chance the confidential message would have been found during review.

Reviewing discovery as “paper” requires reading each and every email. When email is maintained in its native format, it can be searched based on keywords, dates, senders, and other objective information. Moreover, leveraging advanced analytics or predictive coding, the producing party can identify not just responsive information, but privileged as well.

Code-ReviewThere is also the very direct approach for determining whether there are emails that could be protected by the attorney-client privilege: search for any emails to or from a lawyer. Determine whether the email is providing legal advice or if a client is requesting legal advice. If these conditions are met, the attorney-client privilege could apply.

There are many types of privileges, from spousal, to clergy, to tax, and medical advice. The first step in privilege review is determining which privileges apply to your case. It is also wise to determine if your case contains confidential information, such as medical records or personal identifiable information.

Once the privileges and confidential information is determined, the review team can set-up the appropriate issue coding. It is important to know that Judges want to see more than an email is “attorney-client privilege.” The issue coding can have sub-issues, such as “Email from Client Requesting Legal Advice” or “Email to Client Providing Legal Advice.” Depending on the needs of the case, a lawyer might need to include more information to comply with the rules for creating a privilege log.

After document review is completed, a lawyer can search for all privilege information. Based on these results, a privilege log can be created by exporting the necessary objective coding and subjective issue coding to an Excel spreadsheet for production to the requesting party.

Forensically Examining A Lawyer’s Computer

In a dispute over a will and deed transfer, a New York State Court ordered the examination of a lawyer’s computer.

The idea of an attorney’s computer being searched by third parties should scare lawyers to death.

The attorney objected on the grounds the examination would violate the attorney-client privilege and work-product doctrine for all of the attorney’s other clients.

The Court was also concerned about privilege issues and ordered the following examination:

The computer forensic examiner was directed to review the computer only for documents that refer to Rose Tilimbo and it must not examine files which would not likely lead to the discovery of evidence related to Rose Tilimbo.

In the event the forensic examiner inadvertently examined any information that was not related to Rose it is directed to immediately cease the examination of that file.

In the event that forensic examiner located documents that refer directly to Rose Tilimbo or appear to be related to the purported will or the alleged deed transfer, those documents shall be mailed to the parties’ attorneys.

The attorneys would have 14 days from the receipt of documents to object to disclosure to the movants by notifying counsel for the movants that he is objecting and sending the documents to the court for an in camera inspection together with the reasons for the objection.

In the event that no objections are made to the production of the documents or the court rules that the documents are to be disclosed the computer forensic examiner may thereafter submit the documents to movants’ counsel.

Matter of Tilimbo v. Posimato, 2012 N.Y. Misc. LEXIS 4027, at *13-14 (N.Y. Sur. Ct. Aug. 22, 2012) (Emphases added).

Bow Tie Thoughts

It is very good to see a state court judge address the privilege issues of how to examine a lawyer’s computer.

If you ask three different computer forensic examiners how they would comply with the Court Order, you would probably have three different answers. The right approach will depend on how data is stored and multiple other factors best left to the experts.

One option is to make a “mirror image” of the computer and then search for responsive data. This is likely the least desirable for the attorney, because the entire contents of his computer have now been copied and are in the hands of a third-party. Short of a protective order and the computer experts acting as court-appointed neutral examiners who return or destroy the mirror image at the end of the examination, this is least desirable from an attorney’s perspective.

There is software available where the attorney could effectively self-collect his client files. While this might provide the most piece of mind to the attorney, it likely causes the most stress for the requesting party. It also raises issues of how searches were conducted and can easily cast doubt on the adequacy of the collection.

Another option is for a targeted collection of the attorney’s hard drive. This might take more time then doing a mirror image of the hard drive, but provides more piece of mind to the attorney. The collection is based on search terms devised by the computer forensic expert and attorneys to specifically identify the relevant information. This conceptually is a good middle ground approach to both preserve the parties’ interests and the confidentiality of the attorney’s clients.

Instead of the computer forensic examiner “mailing” documents to the attorneys, a hosted repository is an option the parties and court should consider. The producing party could first review the responsive information for any privileged ESI, creating all the necessary information for a privilege log right in the database. The requesting party could then perform its own review and note any challenges to any asserted privileges. The Court itself could then review the information “in camera” and rule on any privilege issues without protracted motion practice.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

tugboatThe sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

istock_000002813503xsmallThe Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.