Legal Professional Privilege Inadvertent Disclosure
2. A lawyer who receives a privileged document does not have due diligence towards the disclosing party and has the right to presume that a privilege has been waived; and subsection (g). The coverage of the rule is limited to solicitor-client privilege and work product. The application of waiver by disclosure, as it applies to other evidentiary privileges, remains a matter of federal common law. Nor does the rule purport to apply to the Fifth Amendment privilege against forced self-incrimination. The next day, Amgen`s attorney sent a letter to Hoechst`s attorney stating that even if Amgen was not prepared to return the documents, they would separate the documents and refrain from further examination. Amgen`s lawyer also requested a register of liens for the documents in question. A few weeks later, Hoechst provided a memorandum of privilege that identified each of the documents and the basis for the claim of privilege. After a few weeks, Amgen`s lawyer sent a letter to Hoechst`s lawyer informing him that Amgen would not return the documents. Hoechst then requested the forced return of the documents. You talk to your supervisor about it in the morning.
This is good evidence and very useful indeed, but your supervisor is less optimistic. It appears that this attracts solicitor-client privilege and was disclosed in error. Out of caution, your supervisor sends an email to your opponents and warns them. An hour passes while they check. The phone rings; It was falsely disclosed. You will be prompted to delete it from your servers and shred all printouts. It is both the starting and ending point for CPR. As Lord Justice Irwin stated in Belhaj v DPP [2018] EWHC 514 (Admin): «The case law on accidental waiver does not fully reflect the terms of section 31.20 of the CPP.» Although the court found that the producing party had tried to separate the protected documents by placing them in separate boxes on separate shelves, it also concluded that these precautions were manifestly insufficient and that there were additional precautions that could easily have been taken. For example, the court noted that if the documents had been returned as a copy by the external seller, a lawyer or legal assistant should have examined the documents to ensure that the correct documents had been copied. The Court considered that Hoechst`s provisional measures were not appropriate, as such disclosure could easily have been avoided.
The tribunal also noted that it took the producing party five days to become aware of the error, and only after the requesting party reported it. In order to concretize many of the above points, a very recent court decision is revealing. In Harleysville Ins. Co. v. Holding Funeral Home, Inc., No. 1:15cv0057, 2017 BL 395 (W.D. Va. February 2, 2017), a federal judge dismissed the plaintiff`s request to disqualify the defense counsel. The dispute arose out of a dispute over insurance coverage related to a funeral home fire. An employee of the insurance company filed the entire file (including privileged documents) on an unprotected file-sharing site (which did not have password protection) and then emailed a link to the site to the company`s external investigator.
The defence lawyer sent a subpoena to the investigator, and his response included the email listing the link. Defence counsel (i) first reviewed the case file and (ii) then referred it to the insurer; The latter led to the request for exclusion as well as to the practice of the application as to whether the insurer could request a waiver under paragraph 502(b) of the E.S.F. California courts hold that accidental disclosure of a privileged document does not generally constitute a voluntary waiver of a known right necessary to determine that the privilege has been waived. See, for example: State Compensation Insurance Fund v.WPS, 70 Cal. App. 4th 644, 653, 82 Cal. Rptr. 2d 799, 805 (1999). California courts have explicitly rejected the «gotcha waiver theory,» in which a subordinate`s slippage in preparing a document becomes the equivalent of actual consent,» which is necessary to determine that privilege is waived, see Ardon, 62 Cal. 4th at 1187 (citing State Comp. Ins. Fund, 70 Cal.
App. 4th at 654). 1) It resolves some long-standing disputes before the courts about the impact of certain disclosures of communications or information protected by solicitor-client privilege or as a work product – particularly those involving accidental disclosure and waiver of articles. In the present case, Mr. Al-Fayed had been arrested on suspicion of theft or damage to property, but had not been charged. He prosecuted the Chief of Police for unlawful arrest and wrongful detention. A number of statements by the defence lawyer that led to Mr. Al-Fayed`s release without charge were inadvertently sent to Mr. Al-Fayed`s legal representatives. While the protection offered by the courts for accidentally disclosed documents may vary from province or territory to jurisdiction, many lawyers are considering using written «collection agreements» to provide additional protection.
In federal courts, parties can enter into agreements that include an application for a court order under Federal Rule of Evidence 502, which were amended in 2008 to address growing concerns about accidental disclosure as investigative requirements and electronic disclosure increased. Although at first glance the position is such that you do not have due diligence to your opponents when it comes to privileged material that has been accidentally exposed, in reality, you should think carefully about whether you are trying to use such a document. The case law on this issue is clear: the courts do not want to deal with it and expect the parties to clarify it themselves.