Privilege Waiver: You Can’t Unscramble Those Eggs

Privilege Waiver: You Can’t Unscramble Those Eggs

Privilege Waiver: You Can’t Unscramble Those Eggs 150 150 Jason Krause

In theory, protecting your privileged attorney-client work product should be a straightforward and simple matter.

In a new ruling out of Ohio, Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., (S.D. Ohio Aug. 28, 2012), all the defendants had to do was mark documents as confidential, and make sure not to produce them to opposing counsel. Instead, Medex, the producing party, sent about 7,500 documents to the plaintiffs and included 347 documents it had declared to be privileged.

Can't Un-Waive Privilege

WHOOPS. Unfortunately for them, once privileged documents are produced, it’s almost impossible to get them back. At a deposition, the plaintiffs introduced fourteen documents Medex argued should have been privileged. The defendant Medex panicked, arguing that the documents were “inadvertently produced, privileged communications” and had them sequestered during the deposition. They sought to claw them back, which in theory is a mechanism parties have agreed on to return privileged documents that are produced accidentally. However, in practice, the claw back provision is rarely enforced by the courts.

You Have to Earn Privilege

This case is a labor dispute in Ohio, whose privilege rules are the same as the federal standard. Privilege is an important protection, encouraging lawyers to communicate freely with clients. But since privilege narrows the amount of evidence that is discoverable, courts narrowly interpret the rules and put a heavy burden on the party invoking privilege, especially when they try to claim a document was accidentally produced.

More than 85,000 documents have been produced in this case, with 347 privileged documents that are under dispute for privilege waiver. The court agreed that many of these 347 documents were, in fact privileged. But now that these documents have been produced, Medex has to prove that they were accidentally produced, that they took reasonable steps to prevent disclosure, and they took prompt and reasonable steps to rectify the problem.

Would You Like Bacon With That?

How did this happen, and was it really an accident? Medex says that several attorneys reviewed document production before sending to opposing counsel. Despite this alleged effort, almost 1 of every 20 of the data in the collection was privileged.
The court found it unbelievable that multiple levels of attorneys could have been so careless as to let so many privileged documents pass to opposing counsel. As a result, the judge did not believe the defendant lost the documents by accident, but more for lack of effort.

Even worse, the court ruled that Medex did not take sufficient steps to rectify the situation, since they could not produce a privilege log or other evidence of intent to protect privilege.

Or, as the ruling puts it, “Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.”

It’s not hard to see how Medex could accidentally produce these records. When sending thousands of documents to opposing counsel, one production happened to include privileged documents, around 5 percent of the total sent that day.

In the middle of a hectic and high-pressure case, it’s hard to maintain several layers of review. But it is increasingly clear that once a failure to protect privilege happens, it’s almost impossible to undo the damage. This week, Nextpoint will discuss many of the ways that privilege can be waived. We will also offer a solution to the legal profession: A cost effective technology, built on new, patent-pending computer search techniques, that removes much of the element of human error in the production of data for litigation.

Don’t forget to download our free Best Practice Guide to Protecting Privilege eBook.