Terrence Ayala, Counsel
Barakat + Bossa, PL
March 3, 2021
Sooner or later, it will happen. Whether you are on the receiving or sending end, a message will reach you email inbox or outbox inadvertently. Or, you will send or receive a response to a discovery request for production, and that response will include materials that were not intentionally included. What do you do next?
If you are a Florida lawyer, you are obligated to notify the sending party that you have received inadvertently disclosed materials. See Rules Regulating The Florida Bar, Rule 4-4.4(b) [Respect for Rights of Third Persons]. That obligation is not limit to the receipt of materials that might represent a “smoking gun.” Rather, the rule extends to any “document or electronically stored information relating to the representation of the lawyer’s client …”. Thus, the rule’s operation is not limited to materials that are privileged or relevant or important. It
extends to any inadvertently disclosed documents or ESI.
There is an important limitation on this obligation. For the obligation to attach, the receiving lawyer must “know or reasonably should know” that the document of ESI was inadvertently sent. So, Rule 4-4.4(b) only kicks in if the received information actually has or objectively would put the receiving lawyer on notice that it was sent in error.
If so, then The Florida Bar’s Ethical Rules require a receiving lawyer to bring such mistaken communication to the sender’s attention, so long as the information relates to the representation of a client.
Other rules come into play if a lawyer receives inadvertently disclosed information that is privileged. Under those circumstances, the next steps that a lawyer must take may depend upon whether the client is being represented in state or federal court. See Federal Rules of Civil Procedure, Rule 26(b)(5)(B); Federal Rule of Evidence, Rule 502(b); and Florida Rules of Civil Procedure, Rule 1.285. These rules will also apply if a lawyer learns that he or she has inadvertently disclosed privileged materials.
So, if you have an email inbox – or outbox – it is important that you become familiar with the rules that are cited here.
I. Background Facts of Recent Matter in the Office
A. Facts pertaining to the Case
B. Facts regarding the Specific Inadvertent Disclosure
C. Potential Strategic Relevance of the Disclosure to the Case
II. Discussion regard Options under consideration.
A. Options under consideration.
B. Communications between Counsel for the Producing and Receiving Parties
i. Notice from Receiving Party.
ii. Response from Disclosing party
III. Analysis and Application of Pertinent Rules
A. Rules Regulating The Florida Bar, Rule 4-4.4(b) [Respect for Rights of Third Persons].
i. Review of Rule.
a. Rule is not limited to the circumstance where the disclosed materials are privileged.
b. Recipient has a duty to notify the Producing Party.
ii. Review of Comments to the Rule, especially as regards privilege considerations.
iii. Discussion of Privilege Considerations relative to the Rule.
B. Discussion of Abamar Housing & Development vs. Lisa Daly Lady Decor, Inc.
i. Review of Sanctions and Disqualification for merely receiving inadvertently
disclosed privileged materials.
ii. Discussion regarding division of labor so as to insulate the trial team from possible disqualification.
C. Federal Rules of Civil Procedure, Rule 26(b)(5)(B).
i. Producing Party must notify the Receiving Party that the materials are privileged.
D. Federal Rule of Evidence, Rule 502(b)
i. No waiver of privilege if the privilege holder follows the Rule 26(b)(5)(B) procedure.
E. Florida Rules of Civil Procedure, Rule 1.285
i. To retain a privilege, the Producing Party must assert the privilege
in writing within 10 days of receiving notice of the inadvertent disclosure.
ii. The Rule contains a procedure for contesting the assertion of a privilege
in inadvertently disclosed materials.
a. Receiving Party must file a challenge within 20 days of receiving a 1.285(a) notice.
iii. See also, Trial Law Section’s 2019 Florida Handbook on Civil Discovery Practice,
at page 25 of 242.