22 Oct Do You Waive the Privilege By Accidentally Giving Your Opponent Attorney-Client Privileged Information in Written Discovery Responses?

In our last blog we discussed the concerns associated with objections to discovery, and how to address a situation where your opponent improperly withholds information during the written discovery process.  A bigger concern however may arise if you or your attorney inadvertently produce privileged attorney-client communications to your opponent during the written discovery process and waive the privilege.  Can you “take back” privileged data that your opponent has already seen?  What can you do to protect you and your company when this has happened?

Attorney-Client Communication Defined

The attorney-client privilege protects communications you have with your attorney about your case.  The communications are only protected if the communications relate to legal advice.  If your communications are not legal in nature, you don’t waive the privilege by disclosing those communications to the other side.  But if the communications are about a legal issue in the case, the communications are protected and you need not disclose them to your opponent.  The protection is meant to foster full and frank communications between you and your attorney.  The privilege is “absolute,” which means your opponent cannot trump your privilege by telling the court he or she really needs the protected information.

Who Can Waive the Privilege?

Either you or your attorney may inadvertently waive the privilege.  While the attorney-client privilege belongs to you as the client, your lawyer may also waive the privilege if your lawyer has your express or implied authority to disclose confidential information in the course of his or her representation of you in the case.

The issue of waiver could become even more complicated when your attorney is representing more than one person, or when your attorney represents both you and the company for which you work.  Generally, a jointly-represented client can waive her own privilege with the joint lawyer, but cannot waive the privilege of joint communications between her and the company.  Issues can arise when it is in the company’s best interest to waive the privilege (for example when it wants to cut a deal with the government), and you don’t.  And if you leave the company during the representation, and your interests become adverse to your former employer’s, both you and your former employer can use joint privileged communications against the other.

Similarly, if you are in a “common interest arrangement” (where you agree to share privileged information with another party or parties in the lawsuit because you share a “common interest” or objective), each party to such an arrangement can waive the privilege protecting their own communications, but cannot waive the privileged communications of others in the group unless all participants join in the waiver.

Unlike a joint representation however, members of a common interest agreement are not required to disclose communications that they did not already disclose to the group.  This is a key distinction, especially if the members of this agreement later become adversaries in litigation.  Members of a common interest arrangement need only share what they want to with the group, and can have protected, privileged communications with their own lawyer that can be kept secret from the other members of the common interest arrangement.

Express Waiver

You can “expressly” waive the privilege.  Waiver of the privilege can be intentional or unintentional, and usually serves to waive the privilege for all third parties, for all time and for all purposes.  This means that, whether or not you, as the client, intended for the waiver to occur, is irrelevant.  However, your waiver of the privilege must be voluntary.  This means that if the court forces you to product privileged information, you can still challenge the production of the privileged information.

Also, if you and your attorney accidentally produced privileged information in the written discovery process, you don’t waive the privilege if your attorney immediately informs your opponent about the accidental disclosure and your opponent does not look at the document or view the information.

In addition, if you only produce a small part of the privileged data to the other side, this generally would not be enough to waive the privilege.   

Intentional Waiver

You can intentionally waive the privilege when you intentionally disclose privileged communications in litigation during written discovery, deposition, in a court filing or during trial, without making any effort to protect it.

To protect the privilege in these circumstances, your attorney must have objected to the disclosure of the information immediately, either before it is disclosed or immediately thereafter.  And when it comes to written discovery, you and your attorney must have reviewed and attempted to have redacted or removed such privileged data before it is produced in written discovery.  Your attorney’s failure to at least take such measures before the disclosure can result in an intentional waiver of the privileged information if your opponent reviews it.

You can also waive the privilege during settlement negotiations or mediation if your attorney is not careful to label such communications as “for purposes of settlement only.”

Unintentional Waiver

An unintentional waiver is the most common type of waiver.  An unintentional express waiver, or inadvertent waiver, occurs when you do not intend to disclose privileged communications.  For example, an unintentional waiver can occur when you and your attorney went to great lengths to review and redact privileged information from your written discovery responses, and some of the privileged data was accidentally produced to the other side.

Waiver in this type of situation can be avoided by (1) sending a post-production notice to the other side, informing them of the error, (2) seeking a court order protecting such inadvertent errors from waiver, or (3) entering into a private claw-back agreement with the other side.  All of these options generally provide that your opponent return or destroy the privileged information in their hands, and that they are prohibited from using this information against you in the litigation unless and until the dispute is resolved.

Key to the determination in these cases is whether you and your attorney took “reasonable” steps to avoid disclosure such as having your attorney conduct a privilege review; labeling written discovery responses as “privileged or confidential”; noting the redaction of the privileged information on a “privilege log”; and reviewing the documents again after the inadvertent disclosure occurred.  It is also important that you and your attorney react promptly after making the inadvertent disclosure by asking the other side to return or destroy the data.

If you and your company are in litigation, and seek counsel to help and protect your interests in the discovery process, please call Edwards Law today for a free consultation.  Don’t do it alone and risk a waiver of your company’s confidential or privileged data.