Court Strikes Inadvertently Produced Email in Consideration of “Human Fallibility”
Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010). In this discovery dispute, the defendant moved to strike an inadvertently produced email to preclude its further use in the litigation. The email was disclosed when the defendant – a BCC recipient – accidentally responded to all recipients of an email sent by his attorney to co-counsel and opposing counsel. Distinguishing this case from those in which counsel inadvertently discloses attorney-client privileged communications while producing voluminous documents, the court nevertheless considered whether counsel took reasonable steps to preserve the communication’s confidentiality. The court found the counsel’s use of BCC gave rise to a foreseeable risk, but agreed that the transmission was obviously unintended and was an easy mistake to make. Noting it was a close decision, the court stated that “[a]n excessive readiness … to find waiver would tend to erode the privilege” that is “tremendously important in our legal system.” Giving consideration to the fact that counsel quickly demanded deletion of the inadvertently produced document, the court granted to motion to strike and cautioned against “the temptation to seize opportunities arising from inadvertent disclosures.”
Preventing inadvertent disclosure of privileged documents has long been a priority for counsel. However, the proliferation of technology has led to a rapid increase in the amount of electronically stored information and increased the probability that privileged documents will be accidently produced. Although only a small handful of states have acted to adopt a rule similar to Federal Rule of Evidence 502, practitioners should undertake efforts to understand FRE 502, and undergo reasonable efforts to protect against inadvertent production and remember to act promptly to rectify the error if privileged documents are produced. Preparing for ediscovery and employing smart technologies throughout the process can help counsel prevent inadvertent disclosures, which in turn can decrease reliance on a rule that may not provide absolute protection in circumstances where privileged documents are accidently produced.