Update (March 25, 2013): The post below concludes with the question of whether one side’s slip-up (that is, an inadvertent disclosure) would ultimately be insignificant when set against the opposite side’s response to the slip-up (that is, a defiant and foot-dragging response).
It is too early to tell whether the recipient of the inadvertent disclosure will suffer from a supposed lapse in judgment and/or civility more than the inadvertent discloser suffered from a lapse in his document production process.
On the other hand, when your adversary refuses to drop his request for sanctions, when he zings you with a 1,000+ word nasty-gram, and when he submits his detailed zinger to the Court, your adversary at least seems to think that you have crossed a line or overplayed your hand.
Time will tell how this will play out, but Minnesota litigators must all heed a message articulated on Minnesota Litigator repeatedly. We’re in Minnesota and civil litigation here is CIVIL litigation (or else) (U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) sends the message (see p.5)).
Original post (March 18, 2013): Previously in TAAFOMFT, Minnesota Litigator went into raptures about the fun of estimating litigation budgets. What joy can be compared with telling one’s client that you have no idea how much their litigation will cost but you can be pretty sure that the amount will seem mind-bogglingly and disgustingly excessive to one’s client?
(Seriously, good litigators can and do a lot better than that. In fact, good litigators should be able to give their clients fairly clear “high/low estimates” but it is not easy and the budgets cannot ever be rock solid, which this can make the process disappointing, frustrating, and unpleasant for everyone.)
But there is even more fun in the life of the civil litigator! You and your legal team, which, at a large law firm means a battalion (partners, associates, paralegals, IT staff, administrative support), enjoy collecting massive depositories of documents, tracking them, and exchanging them at lightning speed internally, with clients, co-counsel, with experts, et cetera and with adversaries over months and years of ongoing litigation.
It is only a matter of time, in almost any litigation of a certain magnitude, when a signal gets crossed and there is an “information security breach.”
And this is where the fun begins in earnest!
Distinguished top-tier Twin Cities law firm of Faegre Bake Daniels (“FBD”), like almost all Minnesota law firms, is composed of human beings and Minnesota Litigator is not breaking new ground with the proposition that people everywhere, even extraordinary people, make mistakes. So it is certainly no slight to FBD that this firm is today’s poster-child for TAAFOMFT (v.2).
Due to a “processing error,” FBD produced an unredacted version of an otherwise privileged 140-page document in the Jesse Ventura v. Chris Kyle defamation action, a case about which Minnesota Litigator has posted previously. This is even more complicated and problematic in a case in which the disclosed material related to national defense.
Maybe it is not surprising, but the law is hardly clear when it comes to how to deal with inadvertent disclosure of privileged material.
Then things get more interesting rather than merely excruciating (that is, excruciating for people capable of empathy, which has been calculated by scientists to be as much as 8% of U.S. civil litigators). That is a joke (or maybe only in part?).
Because then comes the challenging decision-making for the receiving party of the inadvertent disclosure. The law is not entirely clear and consistent across our state and federal systems as to the obligations, ethically and legally, on receipt of an inadvertent disclosure.
Minnesota Rule of Professional Conduct, 4.4(b) provides, “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”
Comment 2 to the rule provides, “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived.” That is, the Board of Professional Responsibility avoids answering the critical follow-up question.
In the Ventura v. Kyle case, apparently Ventura’s counsel, after having a look at the unredacted text in the inadvertently produced unredacted document, concluded that he had “reviewed the material, and saw no discussion of tactics or other confidential military information,” and, on that basis, refused to return the inadvertent production. Defense counsel, however, takes the position that the Court already ruled as to the application of the privilege to this very document in favor of Defendants. If that is true, it does seem as if Ventura counsel cannot simply overrule a privilege finding already made by the Court.
Of course, Ventura counsel will get to respond to defense counsel’s argument. One has to assume that there will be an entirely different perspective from plaintiff’s counsel. But maybe FBD’s error will pale in comparison to plaintiff’s counsel’s error in responding to FBD’s error?