26.6 - 2. Inadvertent Disclosure

JurisdictionNew York

2. Inadvertent Disclosure

Another potential avenue of waiver concerns the inadvertent disclosure to a third-party of an otherwise privileged communication, such as a misdirected fax or email. The test for determining whether the privilege is waived by inadvertent disclosure largely varies by jurisdiction and by court. At one point, state and federal jurisdictions tended to adopt one of three approaches to dealing with this issue—a lenient approach (also known as the Mendenhall approach), a strict approach or a “middle-of-the-road” approach (which includes the Hydraflow approach).3685 However, over the years courts have largely gravitated toward the middle-of-the-road approach. This is due to a number of reasons.

First, under the strict approach, even an inadvertent disclosure was sufficient to constitute a waiver of the privilege. The U.S. Court of Appeals for the D.C. Circuit famously applied this approach in In re Sealed Case.3686 In that case, the court held that

[a]lthough the attorney-client privilege is of ancient lineage and continuing importance, the confidentiality of communications covered by the privilege must be jealously guarded by the holder of the privilege lest it be waived. The courts will grant no greater protection to those who assert the privilege than their own precautions warrant. We therefore agree with those courts which have held that the privilege is lost “‘even if the disclosure is inadvertent.’” 3687

Courts have largely abandoned the strict approach in favor of either the lenient or the middle-of-the-road approaches. This rejection of the rule is largely based on the fact that it could ultimately undermine the very purpose of the privilege, i.e., encourage open and honest communication between the attorney and the client. If clients understood that even inadvertent mistakes would result in the release of that communication and “all related documents,” clients would hesitate providing information to their attorneys.3688

Conversely, under a lenient approach, the privilege “must be knowingly waived”3689 and “mere inadvertent production does not waive the privilege.”3690 Courts generally considered this the “better-reasoned [approach]” on the basis that waiver requires intent and inadvertence is the “antithesis” of intent.3691 However, there is a concern by some courts that, while the lenient approach “remains true to the core principle of the attorney-client privilege . . . it ignores the importance of confidentiality” and “creates little incentive for lawyers to maintain tight control over privileged material.”3692

Most courts are adopting the middle-of-the-road approach, whether it be through court decision or statute.3693 In the federal courts, this change came with the adoption of Rule 502 of the Federal Rules of Evidence (Fed. R. Evid.). The drafters of the rule specifically noted in the rule’s comments section that Rule 502 “rejects the result” of In re Sealed Case and...

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