Chapter 27 Inadvertent Express Waiver

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 27

INADVERTENT EXPRESS WAIVER

27.1 INTRODUCTION

An inadvertent disclosure of privileged communications to third parties outside privilege protection can expressly waive the attorney-client privilege.

27.2 PRESENCE OF THIRD PARTIES ELEMENT

An express waiver can occur upon the disclosure of pre-existing privileged communications to third parties outside privilege protection.

• This contrasts with the absence of any privilege protection ab initio for communications between clients or their lawyers and such third parties, and otherwise privileged communications in which such third parties participate.

27.3 "INTENT TO DISCLOSE" ELEMENT

An inadvertent express waiver can occur with the actual disclosure of privileged communications.

• In contrast, under what could be called the "intent to disclose" principle, the privilege essentially "evaporates" once the client forms the intent to disclose privileged communications to third parties outside privilege protection. ¹

27.4 ETHICS ISSUES

Inadvertent disclosure of privileged communications can implicate ethics issues. [27.401]

[Page 176]

The current ABA Model Rules do not indicate whether recipients of inadvertently disclosed privileged communications may or may not read and use the communications. [27.402]

• From the early 1990s until 2002, the ABA explained that recipients must refrain from reading such communications.

States take differing positions on that issue. [27.403]

VA The Virginia State Bar ² explained that lawyers receiving obviously protected documents or communications during discovery or otherwise must refrain from reading the documents or communications, must alert the sender and follow the sender's instructions.

Courts usually focus on such incidents' privilege implications, but some courts disqualify lawyers for having read such inadvertently disclosed communications. [27.404]

Lawyers analyzing the ethics implications of inadvertent disclosures must consider ethics rules, state statutes, common law, and the pertinent judge's possible reaction. [27.405]

27.5 UNAUTHORIZED DISCLOSURE

Inadvertent or intentional disclosure of privileged communications by someone without authority to waive the privilege usually does not waive privilege protection. ³

27.6 POST-PRODUCTION PRIVILEGE ASSERTIONS

Under fairly recent federal rules changes, litigants may assert privilege protection for "information" produced during discovery, even after disclosing it. [27.601]

• As discussed in Chapters 16 and 17, "information" never deserves privilege protection, although Fed. R. Civ. P. 26(b)(5)(B) inexplicably uses that term.

[Page 177]

Federal Rule of Civil Procedure 26(b)(5)(B) governs such post-production privilege assertions. [27.602]

Some states have adopted similar rules. [27.603]

VA A Virginia Rule allows post-production privilege claims. ⁴

27.7 MEANING OF "INADVERTENT"

Analyzing inadvertent express waivers involves interpreting the term "inadvertent." [27.701]

The term "inadvertent" could refer to a nearly endless spectrum of possibilities. [27.702]

• Examples include the lawyer might have intended to withhold the document after recognizing its privilege protection, but accidentally put the document in the wrong box and sent it to the adversary; the lawyer might have reviewed the document, but missed an obvious privilege protection; the lawyer might have reviewed the document, but missed the available privilege protection by not researching the document's context (such as not recognizing that the recipient was a lawyer); the lawyer might have recognized the factual context of the document, but missed some legal principle that offered privilege protection (such as the "functional equivalent" doctrine discussed in Chapter 6); the lawyer might have recognized the factual context and known the applicable law, but mistakenly thought that the review would be governed by some unfavorable state's law (such as that of Illinois, which does not follow the Upjohn standard discussed in Chapter 6); the lawyer might have recognized the facts and the law, and deliberately produced the privileged document without realizing the risk of a subject matter waiver that required the production of additional privileged documents; the lawyer might have recognized the facts and the privilege and even the subject matter waiver, but did not appreciate the breadth of the subject matter waiver resulting from the document's production; the lawyer might have recognized the breadth of a subject matter waiver caused by the document's production, but not carefully enough checked

[Page 178]

the documents that would be ordered produced under a subject matter waiver and therefore missed some very damaging documents whose production was now required.
•	Some courts take a surprisingly broad view of the term "inadvertent," essentially allowing litigants to avoid the implications of their inattention or even negligence.

Most courts hold that the term "inadvertent" refers to the physical act of disclosure, not a misunderstanding about its legal implications. [27.703]

• In other words, litigants who intentionally disclose communications cannot rely on the "inadvertent" standard to claim that they did not realize the legal ramifications of such an intentional disclosure.

27.8 DOCUMENT PRODUCTIONS PRE-RULE 502

Before Federal Rule of Evidence 502, most courts took one of three positions on the waiver effect of litigants' inadvertent production of privileged documents. [27.801]

The vast majority of courts took a fact-intensive approach, often called the Lois Sportswear approach. ⁵ [27.802]

• Under that approach, courts examined

...