ATTORNEY-CLIENT PRIVILEGE—WHEN DOES AN INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION RESULT IN A WAIVER OF THE PRIVILEGE?

• Published in: The American journal of trial advocacy Vol. 38; no. 3
• Main Author: English, Mark A
• Format: Journal Article
• Language: English
• Published: Birmingham Samford University 01-04-2015
• Subjects: Attorneys; Clawback; CPAs; Federal court decisions; Privileged communication
• ISSN: 0160-0281

Federal courts generally address this issue by using Federal Rule of Evidence 502, which requires a disclosing party to take "reasonable steps" to avoid waiving the attorney-client privilege when there has been an inadvertent disclosure.1 In Rajala v. McGuire Woods, LLP,2 however, the United states District Court for the District of Kansas ordered the use of a "clawback provision" during discovery to relieve the reasonable steps requirement and protect the privileged information.3 In Rajala, McGuire Woods, LLP represented Ethanex Energy, inc. "in the process of becoming a public company and raising capital for the development of an ethanol manufacturing plant. "7 McGuire Woods relied on Federal Rule of Evidence 502(d), which gives a court the power to determine whether a privilege has been waived.8 In asking the court to issue an order that contained a "clawback provision," McGuire Woods claimed that they already "reviewed more than 13,750 documents consisting of approximately 108,000 pages and that it plann[ed] to review and possibly produce many more documents. "9 The plaintiff, however, argued that Federal Rule of Evidence 502(b) governed whether the attorney-client privilege was waived by an inadvertent disclosure through an analysis of the reasonableness of steps taken to avoid the disclosure of the privileged material.10 Further, the plaintiff stated that a clawback provision would limit his ability to argue facts pertaining to the reasonableness of steps taken to avoid a waiver of privilege when documents are produced.11 "So-called 'clawback' provisions 'essentially 'undo' a document production' and allow the return of documents...