Chapter 13 Motions for Mental Or Physical Examination

• Jurisdiction: Maryland

CHAPTER 12 INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL

In response to a request for production of documents, defense counsel John Smith reviewed ten boxes of documents containing thousands of pages of materials. Smith set aside one box containing attorney-client privileged communications and attorney work product. Unfortunately, he failed to remove that box from the room prior to inviting plaintiff's counsel, Sheila Jones, to inspect and tab the documents for copying. Jones inspected the documents, took detailed notes and tabbed those that she wanted copied, including some documents from the box of privileged material. Prior to copying them, Smith reviewed the documents and discovered that he had inadvertently disclosed privileged materials. He immediately contacted Jones by telephone and in writing advising that certain documents that were protected by the attorney-client privilege and work product doctrine had been disclosed by mistake, and would not be copied or provided. Smith represented that he would provide a privilege log identifying the documents and the grounds on which they were being withheld. Jones responded that she would assert that the attorney-client privilege and work product doctrine had been waived by Smith's disclosure and Jones' inspection. Smith countered that Jones had an ethical obligation to refrain from reviewing the privileged documents once she found them, as well as an affirmative duty to notify Smith that they had been inadvertently produced—and that her failure to fulfill her ethical responsibilities estopped her to claim waiver of the privilege.

How should the court rule on the issues joined? Has defense counsel waived the attorney-client privilege and/or work product protection? Was plaintiff's counsel under an ethical obligation to refrain from reviewing the privileged documents or under an affirmative duty to notify defense counsel that the documents were inadvertently produced?

Comment: The concern about inadvertent disclosure of a privileged document is a serious one. Judging from the cases on the subject, this mistake occurs too often. The inadvertent production of privileged materials to third parties may implicate the attorney-client privilege, the work product doctrine, or both. However, whether inadvertent disclosure constitutes a waiver of these privileges does not depend upon which privilege is asserted. "When the disclosure is made to the adverse party . . . the distinction between waiver of attorney-client privilege and of work product immunity disappears. . . ." See Elkton Care Center Associates Limited Partnership v. Quality Care Management, Inc., 145 Md. App. 532, 543, 805 A.2d 1177, 1183 (2002) (internal citations omitted).

The question of whether inadvertent disclosure constitutes a waiver of the attorney-client privilege and/or work product doctrine is answered by one of three standards used by courts throughout the country confronting the issue: (i) the "intermediate" or "middle" test, (ii) the "lenient" or "no waver" test, and (iii) the "strict test" or "per se waiver rule."

In 2002, the Maryland Court of Special Appeals in Elkton adopted the intermediate test, and Md. Rule 2-402(e) codifies that test. Under Rule 2-402(e) and the Maryland cases that applied the intermediate test before its adoption by Rule 2-402(e)(4), the question of whether disclosure during discovery results in loss of privilege protection depends on three factors:

1. The degree of care apparently exercised by the claimant;

2. The presence of extenuating circumstances, the most obvious being the press of massive discovery going forward under the pressure of deadlines, where even caution in producing documents is likely to generate occasional mistakes; and

3. The behavior of the privilege claimant in taking remedial steps after disclosing material.¹

Rule 2-402 (e) pertains to claims of privilege or protection and consists of four distinct provisions. First, subsection (e)(1) requires that the party asserting a claim of privilege or work product protection provide sufficient information supporting the privilege claim to allow other parties to evaluate the application of the privilege or protection. Second, subsection (e)(2) provides that a party in receipt of a document, ESI, or other property that the party knows or reasonably should know was inadvertently sent shall promptly notify the sender. Subsection (e)(3) permits a party to assert a claim of privilege or work product protection within a "reasonable time" after erroneous production of a privileged or protected item ("post-production assertion"). Once the party who produced the information notifies each party who received the information of the claim and the basis for it, each receiving party "shall appropriately preserve the...