Inadvertent Production

Edited at 9:05 PM to fix typos in a first edition that, sadly, I cannot honestly claim to have been inadvertently produced. 

In Vermont, what’s an attorney’s ethical duty when the attorney receives information that the attorney knows or should know was inadvertently sent?

The answer lies in Rule 4.4(b).

The lawyer’s ethical duty is to promptly notify the sender.

But Mike, what if the sender asks the attorney to destroy the information or return it unread?

Again, the ethical duty is to promptly notify the sender.

Indeed, per Comment [2], whether the lawyer has a duty to return the information “is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of the document has been waived.”  Further, here’s Comment [3]:

  • “Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address.  Where the lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”

But does that end the discussion?

Yes.  This blog is over.

Just kidding!  Of course it doesn’t end the discussion!

Don’t forget about the Rules of Evidence and the Rules of Civil Procedure.

In my view, the ethical duty to provide a client with competent representation includes understanding what to do upon (1) receiving information that was inadvertently produced; and, (2) learning that you inadvertently produced information.  In addition, Rule 3.4(c) imposes an ethical obligation to comply with court rules.

Also, here are 2 practical reasons not to forget about the interplay between inadvertent production, your ethical duty, the Rules of Evidence, and the Rules of Civil Procedure.

First, you do not want you firm to be named in a Bloomberg Law headline that announces that your firm conducted itself “poorly.”

Second, you do not want to be the attorney for either side in a matter in which a United States Magistrate’s ruling on a motion to disqualify begins like this:

“The facts underlying this disqualification motion establish that, unfortunately, lawyers on both sides of the litigation acted poorly.”

Especially when the Magistrate continues:

“At the heart of this dispute is a disappointing but obvious inability of opposing counsel in this case to talk and correspond with each other in good faith, to rely on each other’s representations, and to deal honestly and squarely with one another. From its inception, this case has been replete with numerous and extensive discovery disputes, myriad motions, lengthy hearings, and finger-pointing by opposing counsel against each other for various alleged bad acts. The Court does not know if this conduct and mistrust is based upon past dealings between counsel or due to other factors, but the attorneys should be aware that their conduct is not helping their respective clients’ positions in this litigation. In fact, it is downright unproductive and silly.”

The Bloomberg Law article is here.  The magistrate’s opinion is here.

I recommend reading the opinion, particularly if you litigate.  A quick summary:

  • Just before Christmas, defense counsel produced over 14,000 documents in response to plaintiff’s discovery request;
  • Shortly after Christmas, plaintiff’s counsel informed defense counsel that it appeared as if 100 of the documents were privileged, but that plaintiff’s counsel would assume that they were correctly produced and not privileged;
  • The lawyers did not immediately reach an agreement as to whether plaintiff’s counsel would provide defense counsel with the Bates numbers of the documents that appeared to privileged, or, whether defense counsel should provide plaintiff’s counsel with the Bates numbers of all privileged documents that were inadvertently produced.

Long story short, three points:

  1. The defense firm knew what to do – under both the Rules of Evidence and the Rules of Civil Procedure – to preserve the privilege of material that it had inadvertently produced.  Do you?
  2. There is no such thing as “It appears as if you inadvertently produced documents. But I’m going to assume you meant to produce them. Therefore, they aren’t privileged.”
  3. I am not convinced that a lawyer who receives information that the lawyer knows was inadvertently produced complies with Rule 4.4(b) by saying something to the effec that “100 of the 14,500 documents you produced look they might have been inadvertently produced, but I’m not going to tell you which ones.”


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