SC Lawyer, July 2003, #2. Inadvertently disclosed documents: what are your ethical.

• Author: by Douglas L. Lineberry

South Carolina Lawyer

2003.

SC Lawyer, July 2003, #2.

Inadvertently disclosed documents: what are your ethical

South Carolina Lawyer July 2003

Inadvertently disclosed documents: what are your ethicalby Douglas L. LineberryIt is a typical Friday afternoon at your law office, sunny outside with you wishing you were anywhere but working at your desk. Your administrative assistant interrupts your reverie by bringing you a facsimile from opposing counsel in one of your more hotly contested cases. Tearing your attention from your latest daydream, you quickly review the fax cover sheet that was faxed to you and opposing counsel's client. The attached letter is addressed to opposing counsel's client but does not list your address. You quickly skim the first paragraph of the letter that appears to be a general description of the facts. At this point you stop reading it. Your Friday just became a lot more interesting. Do you continue to read even though it may contain attorney/client privileged and work product materials? What do you do with this unexpected boon? What may you do with it? What should you do?

The electronic age has dramatically heightened an attorney's ability to communicate over vast distances at staggering speeds. With the click of a mouse or by hitting "send" on a fax machine, important client materials can be e-mailed or faxed anywhere there is a receiving device. Although decidedly convenient, this speed also allows one to make mistakes at that same lightning pace as well. Attorneys must consider the obligations that exist whether technology works in their favor or against them. This is further complicated when considered in the context of the American legal system in which our colleagues, for better or worse, are adversaries over whom we continually seek to gain strategic and informational advantages.

Is the matter privileged?

The attorney faced with the decision of whether to use or return inadvertently produced materials must tread carefully. Is this privileged material? Has the privilege been waived? As noted by University of South Carolina School of Law Professor John P. Freeman, "[w]hether inadvertent disclosure waives an otherwise applicable privilege turns on evidence law and depends on the circumstances." Freeman, John P., Inadvertent Disclosure of Data to the Other Side, Part II, Ethics Watch, 8 South Carolina Lawyer 10, January/February 1997. Professor Freeman deftly articulates that South Carolina strictly construes the attorney/client privilege. As he explains in his review of Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984), and Hansen v. DHL Laboratories, Inc., 316 S.C. 505, 450 S.E.2d 624 (Ct. App. 1994), South Carolina courts require a voluntary waiver of the attorney/client privilege for materials to lose their status as privileged materials. Moreover, South Carolina courts will more than likely protect a party from waiving the privilege where the material was produced "through oversight and inadvertence." However, Professor Freeman noted that Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146 (D.S.C. 1974) indicated that the attorney/client privilege can be waived through inadvertent disclosure.

Has any privilege been waived?

In determining whether a privilege has been waived by inadvertent...