Read That (Privileged) Email – and Weep!

By Robert Cross

Have you ever hit “send” on a sensitive email before realizing that your handy, autofill tool inserted the address of the wrong recipient? Or been the unintended recipient of such misdirected emails? What to do? Thankfully, the misguided email usually ends up in disinterested hands and is deleted without harm to the sender. But, sometimes . . .

Any careful litigator knows that severe penalties may be in store for the attorney who reads or attempts to make use of a privileged communication inadvertently disclosed by opposing counsel. The ruling in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 (“State Fund”), held that counsel’s inadvertent production of a privileged communication does not necessarily constitute a waiver of the privilege.

The court established a “standard governing the conduct of California lawyers”: When the lawyer receives materials that obviously appear to be privileged and it is reasonably apparent that they were inadvertently provided, the lawyer must stop reviewing the materials, immediately notify the sender and resolve the situation by agreement or resort to the court.

The California Supreme Court approved the State Fund standard and extended it to materials protected by the work product doctrine. Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807. The court held that the standard is objective and considers whether reasonably competent counsel would have concluded the materials were privileged and how much review should have been necessary. It upheld the trial court’s finding that disqualification was appropriate because of the attorney’s extensive use and dissemination of the materials.

Recently, the Court of Appeal in McDermott Will & Emory LLP v. Superior Court (April 18, 2017) 10 Cal.App.5th 1083 further extended the State Fund/Rico standard to include a presumptively privileged email provided not by opposing counsel but by the adverse party himself, in a circuitous route by which it ended up in the hands of the recipient lawyer. The trial court had disqualified the law firm which used the email despite the firm’s claim that email was not obviously privileged since the opposing party had apparently waived the privilege by forwarding it to a third party. The Court of Appeal upheld the trial court’s determination that the party had not intended to waive the privilege and that the lawyer had therefore violated the State Fund/Rico standard, warranting disqualification.

So, before you do a happy dance upon discovering the adverse party’s emails with counsel, or counsel’s strategy notes, among the most recent document production – or having them miraculously forwarded by your client – STOP READING! There could be a huge waterfall just around the bend.

About the author:

Bob Cross focuses his practice on business and probate litigation matters, and has extensive trial experience in the state and federal courts.  He is a partner of Skootsky & Der, a boutique emphasizing trust and estate litigation, administration and planning.