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In the fast-paced age of electronics, our time savers can be our downfall. Email, text message, mobile phones that are not registered by the state bar… when did it become so hard to find a privileged method of communication?

The truth is, email can be protected by attorney-client privilege – even after a breach occurs. However, when an email does become inadvertently sent to opposing counsel, SPEED is of the utmost importance. The precedent for this situation has already been set, so if you find that you or your paralegal team does disclose something they should not, you have a next move with a case to back it.

In the case of Pick v. City of Remsen, Defense leaked a privileged email to Plaintiff counsel. Their move: calling Plaintiff counsel within 40 minutes of the accidental production.

Plaintiff refused to destroy the email – they offered to redact attorney-client advice. Out of this dispute came a 5 step process to determine whether or not attorney-client privilege has been waived.

  1. The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production,
  2. The number of inadvertent disclosures,
  3. The extent of the disclosures,
  4. The promptness of measures taken to rectify the disclosure, and
  5. Whether the overriding interest of justice would be served by relieving the party of its error.

(Information courtesy of BowTieLaw)

As a result, for cases of this nature, Federal Judges determine whether inadvertent production over email can actually waives attorney-client privilege. The relevant evidence to keeping attorney-client privilege intact is in demonstrating a quick response to the incident, and also setting defense measures, such as including a confidentiality clause in your email signature in the event of a printed or accidentally filed digital document.

Ultimately, the situation can literally result in erasing history: the sooner the incident is reported, the sooner a judge can order the receiving party destroy the email. Now you know the next move, do not wait around when a mistake is made. Let your paralegals and clients know… It’s the only way to ensure no breaches are kept from you – breaches that could cost you your next case.

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