Inadvertent disclosure of privileged documents is an issue that periodically arises for lawyers and clients. Recently, Infowar host and founder, Alex Jones’ attorneys had to deal with an inadvertent disclosure to the opposing parties of cellphone records protected by attorney-client privilege during the Sandy Hook massacre defamation case proceeding against him.1 Understanding how to deal with inadvertent disclosure and what remedies are available is an important aspect of legal practice because attorneys can find themselves (or their client) suffering from an inadvertent disclosure of protected information or, conversely, being presented with inadvertently disclosed documents.
Privilege? What is that? Do I Have It?
In order to understand the legal parameters of returning attorney-client privileged material, it needs to be understood by what is meant when referring to “attorney-client privilege”, “inadvertent disclosure of privileged material,” and “protective orders ordering return of inadvertently disclosed information.” Remember, the client is the holder of the privilege.
In today’s legal proceedings, New York courts almost exclusively rely upon the common law in their application of “attorney-client privilege.”1 This is evidenced in the case, People v Belge, where the Onondaga County Court ordered the defendant to produce corporate records as per a subpoena duces tecum, but the appellant refused and claimed that these records were protected by attorney-client privilege. The Onondaga County Supreme Court held the defendant in contempt and sentenced to the Onondaga County Correctional Facility at Jamesville after defendant rejected the Court’s order of providing the records in camera.3Upon the defendant’s subsequent appeal, the Appellate Court stated that the appellant-defendant was not referring to Fifth Amendment privilege, but rather to the privilege of confidentiality in an attorney-client relationship.4The Court ruled that for information to be protected under “attorney-client privilege”, there must be an attorney-client relationship and “the information must have been given with the expectation of confidentiality and for the purpose of obtaining legal…advice.”5The Court affirmed the Court’s ruling that the appellant was contemptuous, but vacated the sentencing and remanded the case back to the Onondaga County Court to allow the appellant to make a disclosure of the records under oath.6
Can I Lose My Privilege? What If I Send Accidentally Reveal Something?
Next, having established what constitutes “attorney-client privilege”, we move to the inadvertent disclosure of privileged material and reclaiming that material via protective order. Previously, some courts held that inadvertent disclosure of privilege documentation served as an automatic waiver of said privilege because the client and attorney possess sufficient means to preserve the secrecy of a communication, and because disclosure makes achievement of the benefits of the privilege impossible.7 Thankfully, this jurisprudence has been augmented to a more forgiving common law rule, which states that inadvertently disclosed material is still protected under attorney-client privilege, subject to the satisfaction of several factors.8 For privileged information to remain protected under “attorney-client privilege” when inadvertently disclosed, it needs to be shown that: (1) it was the client’s intention to retain the confidentiality of the privileged material; (2) the client took reasonable steps to prevent disclosure; (3) the client promptly objected to the disclosure; and, (4) the party claiming the waiver would not be prejudiced if a protective order is issued for said privileged materials.9 Furthermore, the burden of proving that the privilege applies is on the party asserting the privilege.10Next, if during a proceeding, a court concludes that inadvertent disclosure was not a waiver of “attorney-client privilege”, then that finding serves as grounds for returning the privileged documentation back to the party moving for the protective order, but this demand of return has to be expressed in the motion for the protective order.11 Comment 4(2) of Rule 4.4 of the ABA Model Rules of Professional Conduct states the following regarding the return of inadvertent documentation: “Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived.”
In Manufacturers and Traders Trust Co. v. Servotronics, Inc., plaintiff, Manufacturers and Traders Trust Co., and Defendant, Servotronics Inc., executed two agreements, the Debt Modification Agreement and the Sinking Fund Agreement.12 The defendant discovered that six documents were inadvertently disclosed to the plaintiff.13 The defendant moved for a protective order for the documents to be returned and for an injunction preventing the plaintiff from utilizing the six documents.14 Special Term denied the defendant’s motion.15The Appellate Court unanimously reversed and granted the protective order, thus returning the six documents.16 The Court first ruled that the six documents were protected by “attorney-client privilege” because Defendant satisfied the rule constructed in People v. Belge.17 The Court then ruled that the inadvertent disclosure of the six documents did not serve as a waiver of “attorney-client privilege.”18 Utilizing the four factors mentioned above, the Court reasoned that it was not the defendant’s intention to disclose the documents, as evidenced by the vice-president of the defendant bank stating that they did not intend to disclose.19 To satisfy the second factor, the Court stated that the defendant took reasonable steps to prevent disclosure, as evidenced by the screening of all the material by the defendant’s lawyers prior to handing over the materials to the plaintiff.20 For the third factor, the Court stated it was sufficient that, after learning about the inadvertent disclosure, the defendant only took two days to initiate proceedings for a protective order.21 For the fourth and final factor, the Court concluded that a protective order would not prejudice the plaintiff because the defendant quickly began proceedings and didn’t exacerbate the error by testimony.22
Regarding the last factor, which addresses prejudice towards the party claiming waiver of privilege, the party claiming waiver of attorney-client privilege is prejudiced when it relies on the contents of the inadvertently disclosed information and the information is relevant to the case in question.23 In the case, AFA Protective Systems, Inc. v. City of New York, after a series of failed settlement discussions between the parties from December 1994 and November 1998, plaintiff AFA informed defendant City of New York via letter that they have in their possession a memorandum, dated February 17, 1994, written by one of the former defendant’s attorneys.24 AFA stated their intention to file this memorandum with the Court in support of its summary judgment motion.25 City of New York soon thereafter objected to AFA’s intended use of the memorandum claiming that the content of the memorandum is protected by attorney-client privilege.26 Utilizing the four factors test established by Manufacturers and Traders Trust Co., the Appellate Court stated that the City of New York knew for four years that the memorandum was in AFA’s possession.27 There is no evidence to suggest that the City of New York, after learning of AFA’s possession of the memo, demanded its return nor is there evidence of the City figuring out whether the memo was inadvertently or unlawfully disclosed.28 Therefore, the Court held that granting a protective order would be prejudicial to AFA because the memo is relevant to this case and AFA relied on the contents of the memo in support of their summary judgment motion.29 The Court reversed the lower court’s decision and denied the City of New York’s motion for a protective order.30
Conversely, in federal court, when the inadvertently disclosed information is not vital to the arguments presented by the party claiming the waiver, then they wouldn’t be prejudiced if a protective order is issued. For instance, in Employers Ins. Co. of Wausau v. Skinner, in response to document requests, Plaintiff delivered 396 documents to Defendants Skinner.31 Amongst these documents was an email that the Plaintiff later claimed was inadvertently disclosed.32 Thus, Employers motioned for a protective order ordering Skinner to return or destroy the original and copies made of the email and to preclude Skinner from utilizing the email in any way.33 Upon evaluation of the prejudice factor, the Court stated that although the contents of the email related to the present action, the contents of the email are not vital to Skinner’s arguments.34 The Court reasoned that Skinner would still be capable of making their arguments even without the contents of the email.35
Similarly, in Long Island Lighting Co. v. Allianz Underwriters Ins. Co., the Appellate Court stated that a protective order prohibiting the use of plaintiff LILCO’s December 1993 Report, an internal report marked “Privileged and Confidential Attorney Work Product Attorney-Client Communication”, would not be prejudicial towards the defendants because the defendants’ motion for summary judgment was supported by over 200 documents, other than the December 1993 Report.36 The December 1993 Report was not vital enough to make granting a protective order prejudicial against the defendants.37
In conclusion, the arguments and precedent alluded to above signifies that inadvertently disclosed information protected by attorney-client privilege is not always protected. Rather, in certain scenarios, the claim of attorney-client privilege will not be sufficient enough to warrant a protective order, especially when there are factors that may be prejudicial to the other party. Relevance of the information to the matter at hand, and the actions of both the client and their counsel, are key factors that the Court considers prior to making a determination on whether certain information should remain in confidence. Thus, it is increasingly important for attorneys to monitor, undergo multiple reviews, and establish internal systems that ensure protection of all attorney-client privileged information before any inadvertent disclosure occurs, as there is no assurance that such mistakes will be rescindable.
1See David L. Hudson Jr., Alex Jones case shows inadvertent disclosure of electronically stored information is a real risk, ABA Journal, Oct. 27, 2022, https://www.abajournal.com/web/article/alex-jones-case-shows-inadvertent-disclosure-of-electronically-stored-information-is-a-real-risk.
2See Spectrum Systems Intern. Corp. v. Chemical Bank, 78 N.Y.2d 371 (N.Y. 1991); People v. Belge, 59 A.D.2d 307 (4th Dep’t 1977); Forman v. Henkin, 93 N.E.3d 882, 887 (N.Y. 2018); BDO USA, LLP v. Franz, 208 A.D.3d 1088 (1st Dep’t 2022).
3People v. Belge, 399 59 A.D.2d 307, 308 (4th Dep’t 1977).
6Id. at 309.
7Manufacturers and Traders Trust Co. v. Servotronics, Inc., 132 A.D.2d 392, 398 (4th Dep’t 1987); Enterprise Architectural Sales, Inc. v. Magnetic Builders Group LLC, 193 A.D.3d 411 (1st Dep’t 2021); Delta Financial Corp. v. Morrison, 819 N.Y.S.2d 425, 429 (Sup Ct, Nassau County 2006).
8Manufacturers and Traders Trust Co., 522 N.Y.S.2d at 395.
9Id. at 398, 399.
10Id. at 398.
11Campbell v. Aerospace Products Intern., 37 A.D.3d 1156, 1157 (4th Dep’t 2007).
12Manufacturers and Traders Trust Co., 522 N.Y.S.2d at 393.
16Id. at 399.
17Id. at 395.
18Id. at 393.
19Id. at 398.
20Id. at 399.
22Manufacturers and Traders Trust Co., 522 N.Y.S.2d at 399.
23AFA Protective Systems, Inc. v. City of New York, 13 A.D.3d 564, 565 (2d Dep’t 2004).
27Id. at 565.
31Employers Ins. Co, 2008 WL 4283346 at *1.
33Id. at *10.
36Long Island Lighting Co. v. Allianz Underwriters Ins. Co., 301 A.D.2d 23, 31 (1st Dep’t 2002).