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Facebook litigation expert’s inadvertent production of e-mail results in waiver of privilege due to lawyer’s failure to supervise and take prompt steps to rectify the error

Hello and welcome to this Ethics Alert blog which will discuss the recent strongly worded federal District Judge’s opinion finding that a retained expert’s inadvertent disclosure of privileged information in an e-mail waived the attorney/client privilege since the lawyer who retained the expert failed to properly supervise the expert and failed to promptly “rectify” the error.  The case is Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 1392965 (W.D.N.Y. Apr. 19, 2012).

In this case, plaintiff’s counsel retained an information technology expert to recover a specific document from a computer at the plaintiff counsel’s office and instructed the expert to produce that document to the digital forensic consulting firm retained by the defendants; however, the expert inadvertently copied and produced (on a compact disc) both the document he was instructed to recover and a privileged e-mail to which it was attached.

The defendants’ consultant stated that he did not review the CD and forwarded the e-mail and the attachment directly to defendant’s counsel, with a short note.  Approximately two weeks later, the consulting firm disseminated the e-mail in its native format to all parties to the action.  Over 2 months after the dissemination, the plaintiff, through counsel, claimed that the e-mail was inadvertently produced and requested it be returned or destroyed.

According to the opinion, Fed. R. Evid. 502 states that the determination as to whether an inadvertent production will result in waiver is dependent upon several factors, including whether “the privilege holder took reasonable steps to prevent disclosure” and whether “the privilege holder took reasonable steps to rectify the error.”  The opinion states as follows:

“With regard to the first element, (plaintiff’s counsel), by failing to personally supervise (the expert’s) retrieval of the LawsuitOverview.pdf filed from the computer in (plaintiff’s counsel’s) law office in Hornell, while (plaintiff’s counsel) was in California, also failed to take reasonable steps to prevent the inadvertent disclosure of the March 6, 2011 email.  Although (plaintiff’s counsel) cannot be admonished for retaining the services of (the expert) to retrieve from (plaintiff’s counsel’s) Hornell law office, while (plaintiff’s counsel) was in California, information responsive to Defendants’ discovery requests, (plaintiff’s counsel) could have had the expert) first forward any documents to (plaintiff’s counsel) in California where (plaintiff’s counsel) could have reviewed the documents to ensure there was no extraneous, privileged materials attached.  If (plaintiff’s counsel’s) physical presence in Hornell was necessary to properly and thoroughly oversee the production of evidence, (plaintiff’s counsel), as lead counsel in this high-profile case, should have made himself present to do so, and (plaintiff’s counsel) has not proffered any explanation as to why his presence was not possible.”

The opinion also found that plaintiff was “unable to establish he took reasonable steps to remedy the inadvertent disclosure” since more than two months passed between the dissemination of the privileged e-mail and the request for the e-mail’s return or destruction; therefore the privilege was waived.

Bottom line:  This is an example of how the retention of experts in a case can potentially go awry.  As we all know, lawyers are required to properly supervise all non-lawyer employees and agents (including retained experts).  The opinion in this case found that the lawyer failed to properly supervise the expert and “rectify” the error; therefore, the client’s attorney/client privilege with regard to that document was waived.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]

www.jac-law.com

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