PBCBA BAR BULLETINS pbcba_bulletin_january 2019 | Page 15

PROFESSIONALISM C o r n e r
Inadvertent Disclosures: The Professional and Ethical
Way to Handle Them
MICHELLE DELONG
Introduction
Have you ever received a document or
communication and exclaimed, “I can’t
believe this was produced!”, or questioned,
“am I supposed to see this?” Did you consider
whether the document or communication
produced was in fact a privileged document
mistakenly disclosed? Florida licensed
attorneys have certain ethical obligations
to abide by in the event of an inadvertent
disclosure during discovery.
Although inadvertent disclosures should
never happen, they still infrequently do. The
practice of law is fast-paced and technology
is speeding up everything. While attorneys
have an ethical obligation to oversee
and review all work product before it’s
transmitted externally; sometimes, things
get missed when reviewing thousands of
documents in a production or perhaps, a
staff member unilaterally makes a decision
to produce a document or communication
without the attorney’s review or knowledge.
Whatever the reason behind the inadvertent
disclosure,
attorneys
have
ethical
obligations as the disclosing party or the
receiving party under Florida law.
Obligations of the Disclosing Party
The party who disclosed the privileged
information must serve written notice
to the receiving party within ten days of
discovering the inadvertent disclosure. Fla.
R. Civ. P. 1.285(a). In that written notice, the
disclosing party must state she intends
to assert the privilege and “specify with
particularity the materials as to which
the privilege is asserted, the nature of the
privilege asserted, and the date on which
the inadvertent disclosure was actually
discovered.” Id.
Obligations of the Receiving Party
Once the receiving party receives notice that
the inadvertent disclosure occurred, she is
required to “promptly return, sequester, or
destroy the materials specified in the notice,
as well as any copies of the material.” Fla.
R. Civ. P. 1.285(b). The receiving party must
also notify any third party who has received
the materials in error and take reasonable
steps to retrieve those materials for return
or destruction. Id. These actions are not
optional under the Florida Rules of Civil
Procedure. Id.
Still, despite the Rules established under
Florida law, when a receiving party refuses
to return or destroy privileged documents,
the matter gets litigated in the trial courts
and decisions have been appealed. Orders
denying the request to return privileged
Obligations When the Receiving Party documents are reviewed under certiorari
Recognizes an Inadvertent Disclosure Has because no adequate remedy of law can be
Occurred
provided on plenary appeal when privileged
documents are disclosed. Abamar, 673 So.
The Florida Rules of Professional Conduct 2d at 277; see also Jacobson, 25 So. 3d at 85.
also provide guidance as to the ethical
obligations required of lawyers when a To determine whether an inadvertent
known inadvertent disclosure has occurred. disclosure waives the privilege, the majority
Fla. R. Prof’l Conduct 4-4.4. A lawyer approach is to apply the five-factor test
who knows or reasonably should know known as the relevant circumstances test.
she received attorney-client privileged Jacobson, 25 So. 3d at 86 (citing Abamar,
documents
or
information
through 698 So. 2d at 278¬–79); see also Lightbourne
inadvertence must immediately inform v. McCollum, 969 So. 2d 326, 333 (Fla.
the disclosing party. Id. 4-4.4(b). At that 2007) (citing Abamar with approval). To
time, the receiving party must return or determine whether the privilege has been
destroy the materials. Fla. R. Civ. P. 1.285(b). waived the court evaluates the following:
Alternatively, upon notification, the ten
days begins to run where the disclosing (1) the reasonableness of the precautions
party must assert privilege and specify taken to prevent inadvertent disclosure
with particularity what documents or in view of the extent of the document
information must be returned or destroyed. production;
Id. 1.285(a).
(2) the number of inadvertent disclosures;
(3) the extent of the disclosure;
An Inadvertent Disclosure Is Not an (4) any delay and measures taken to rectify
Automatic Waiver
the disclosures; and
(5) whether the overriding interests of
An inadvertent disclosure of attorney-client justice would be served by relieving a party
privileged information is not grounds for of its error.
an automatic waiver. Nova Southeastern
Univ., Inc. v. Jacobson, 25 So. 3d 82, 86 (Fla. Jacobson, 25 So. 3d at 86 (citing Abamar,
4th DCA 2009) (“Florida courts do not apply 698 So. 2d at 278¬–79). Courts evaluate
a strict rule that counsel’s inadvertent and weigh the five-factors in each factual
production alone waives the attorney- circumstance. No one factor weighs more
client privilege.”). “Florida law recognizes than the other, nor does the absence of
that the waiver of a privilege, ‘imports the any deem automatic waiver. Courts have
intentional relinquishment of a known oftentimes criticized and reminded counsel
right.’” Abamar Hous. & Dev., Inc. v. Lisa Daly that these matters should be resolved
Lady Décor, Inc., 698 So. 2d 276, 278 (Fla. 3d without court intervention as “the well-
DCA 1997) (quoting Prieto v. Union Am. Ins. justified dictate [implores] ‘[a]n attorney
Co., 673 So.2d 521, 523 (Fla. 3d DCA 1996)). who receives confidential documents of
An inadvertent disclosure is the opposite of an adversary as a result of an inadvertent
an intentional renunciation. Id. Therefore, release is ethically obligated to promptly
a privilege cannot be deemed waived upon notify the sender of the attorney’s receipt
an inadvertent disclosure of documents or of the documents.’” Marcus & Marcus, P.A. v.
information. Id.
Sinclair, 731 So. 2d at 846–47 (citing Abamar,
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