On November 21, 2014, KWIKH founding partner Michael Kump, who has dealt with thorny privilege issues throughout his litigation career, contributed an article to the Los Angeles Daily Journal entitled “Beware of Inadvertent Production of Privileged Documents.” In discovery today, attorneys occasionally produce by accident documents protected by the attorney-client privilege and/or the attorney work product privilege. This is particularly true given the increased use of and discovery involving electronically stored information (ESI).
In his article, Mike explains that parties producing documents in discovery need to take reasonable but not Herculean efforts to avoid the disclosure of privileged information. When such documents are accidentally produced, however, the receiving attorneys are ethically obligated not to use the information. The California Supreme Court ruled that when attorneys receive documents that could be confidential, they must notify the producing attorneys and attempt to resolve the matter. Failure to do so can result in the attorneys’ disqualification. Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 (2007).
Because of the increasing frequency of these problems, California in 2009 implemented a statute for ESI produced in discovery subject to a claim of privilege. See Code of Civil Procedure § 2031.285. The statute provides that the receiving party must sequester the information and return all copies or present the information to the court under seal until the privilege issue is resolved. The court cannot refer to the content of the privileged information at issue in order to determine if it is truly privileged (except for documents subject to the qualified work product privilege, which may be reviewed in camera).
Mike’s article warns attorneys who receive documents in discovery that might be privileged to be very careful and to comply with recent California law, or risk disqualification.