Maine Bar Journal
Spring 2012 #4.
Rules Governing The Inadvertent Disclosure Of Privileged Documents In Maine
Maine Bar JournalVOLUME 27 , NUMBER 2 , Spring 2012Rules Governing The Inadvertent Disclosure Of Privileged Documents In Maineby Michael A. NelsonYou have just received a CD containing thousands of documents produced by opposing counsel in a large commercial case. As you begin the review, you realize that one group of documents appears to include communications between the president of the opposing party and his counsel, including extensive discussions of litigation and settlement strategy. Your first thought might be: "Eureka, , I have just hit the mother lode!" Then you realize that you actually may have a problem. What should you do?
This article will describe the history, development, and current status of the rules governing the conduct of lawyers who receive inadvertently disclosed privileged documents.
The Governing Rules
Common Law Rules
The attorney-client privilege protects confidential communications between a lawyer and a client for the purpose of giving or receiving legal advice.(fn1) Voluntary disclosure of the communication to a third party waives the privilege.(fn2)
The question of whether the inadvertent-as opposed to voluntary-disclosure of an attorney-client communication constitutes a waiver of the privilege was first addressed in Maine by the federal court in FDIC v. Singh(fn3) In that case, the court observed that other courts had resolved the question of whether the inadvertent disclosure of a privileged document constituted the waiver of the privilege one of three ways. One line of cases held that a truly inadvertent disclosure was not a voluntary disclosure and, therefore, could never constitute a waiver of the privilege.(fn4) A second line found that it could constitute a waiver if the party asserting the privilege failed to take reasonable precautions to protect the privilege and prevent disclosure.(fn5) A third line held that a disclosure, inadvertent or not, constituted a waiver of the privilege because privileged documents must be confidential and a disclosed document no longer was confidential.(fn6) The federal court in Singh case opted for the third approach. Hence, as of 1990, the disclosure of a privileged document in Maine constituted a waiver of the privilege, allowing the receiving party to read and use the document for whatever advantage could be gained.
Two years later, the Professional Ethics Commission of the Maine Board of Overseers of the Bar addressed the issue of inadvertent disclosure from an ethical standpoint.(fn7) The Commission concluded that the Maine Bar Rules did not prohibit a lawyer from retaining and using a clearly privileged document "voluntarily but mistakenly provided by opposing counsel." The Commission indicated that the receiving lawyer should notify opposing counsel of the inadvertent disclosure of the document and provide counsel with a copy. However, it concluded that nothing in the Bar Rules in effect at that time prevented the receiving lawyer from disclosing and using the document.
The Law Court first addressed the issue five years later in Corey v. Norman Hanson and DeTroy.(fn8) In that case, the Law Court rejected the federal court's adoption of the third line of cases- that inadvertent disclosure always constitutes a waiver of the privilege- and adopted the opposite position that a truly inadvertent disclosure of a privileged document by a lawyer to opposing counsel does not constitute a waiver of the privilege. The Court reasoned that since only the client could waive the privilege, an inadvertent disclosure of a privileged document by the lawyer without the client's consent could not constitute a waiver. The Court further held that the receiving lawyer could not use or disclose the document and must return it to the producing party.
Hence, as of 1999, Maine had two diametrically opposed common law rules governing the inadvertent disclosure of privileged documents. For cases pending in federal court, the inadvertent disclosure of a privileged document constituted the waiver of the privilege allowing the receiving party to use and disclose the document. For cases pending in state court, inadvertent disclosure did not constitute a waiver of the privilege and lawyers receiving such documents were required to return them without using or disclosing them. Subsequent amendments to the Federal and Maine Rules of Civil Procedure, the Federal Rules of Evidence and the Maine Rules of Professional Conduct modified these common law rules.
Rule 26(b)(5)(B) of the Federal and Maine Rules of Civil Procedure
Rule 26(b) of the Federal Rules of Civil Procedure was amended in 2006 to establish procedures in the event of the inadvertent disclosure of privileged documents. The Maine Rules of Civil Procedure were amended in 2008 to incorporate the federal rule.
Under Rule 26(b)(5)(B), a party who believes that it has inadvertently disclosed privileged documents must notify the receiving party of its privilege claim with respect to those documents. Upon receipt of that notice, the receiving party must promptly return, sequester, or destroy the specified documents and any copies. The receiving party may not use or disclose the documents and must take reasonable steps to retrieve them if they have been disclosed or produced. If there is a dispute concerning the privilege claim, that dispute may be taken to the Court by either party for determination of the validity of the claim.