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.
There 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.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.