Klein & Wilson

Lawyers Can Take a Peek at Inadvertently Transmitted Privileged Writings But Should Get Court Permission To Use Them

The California Rules of Professional Conduct go far beyond protecting clients from unscrupulous lawyers. Rule 1.0(a) says the rules are designed "to protect the public, the courts, and the legal profession; protect the integrity of the legal system; and promote the administration of justice and confidence in the legal profession."

Sometimes lawyers representing clients in litigation unintentionally produce too many documents to the other side. Even the most careful attorney can fail to remove every privileged document from a production which includes thousands of emails. Occasionally, the most sophisticated ESI (electronically stored information) vendors produce the privileged documents which the lawyer so carefully screened from production.

Rule 4.4 addresses this scenario. It protects the attorney-client privilege (one court said it was "sacred") and work product doctrine. The rule says,

"Where it is reasonably apparent to a lawyer who receives a writing relating to a lawyer's representation of a client that the writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall:

a. refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and

b. promptly notify the sender."

This rule makes sense and prevents lawyers from making successful "gotcha" arguments. However, the rule only goes so far and does not operate as an impenetrable shield.

Let's assume an honest lawyer receives apparently privileged information and follows Rule 4.4. What if that honest lawyer believes there is a legitimate argument the documents are not privileged or that the privilege was waived? This rule does not provide guidance.

California Code of Civil Procedure section 2031.285 provides the next step. It says when there is a dispute as to whether produced ESI is in fact privileged, the lawyer who received the ESI can file the "privileged" documents with the court under seal for resolution of the issue. A lawyer who fails to follow Rule 4.4 and CCP section 2031.285 and uses allegedly privileged information, faces the possibility that a court will later determine that decision was foolhardy and order that lawyer disqualified from the case. See Rico v. Mitsubishi Motors Corp. (2007) 42 Cal. 4th 807, which was decided before Rule 4.4 and CCP 2031.285 were enacted.

Upon receipt of a document production from the other side, take steps to review those documents promptly. Otherwise, you may not learn there are documents in that production you want to use during depositions or at trial (but can't because they are arguably privileged), and you will not have sufficient time to take advantage of CCP section 2031.285. One way to protect yourself from an inadvertent production of privileged documents is to enter an ESI protocol agreement before producing documents, requiring opposing counsel to return inadvertently produced privileged material without question.

Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2018 SuperLawyers Top 50 Orange County list. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law.

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