The Ethics of Inadvertent
Disclosure of Privileged Documents
by Ellen Lockwood, CLA—Ethics Chair
who has ever been involved in the production of documents to
opposing counsel, whether in litigation or transactional work,
knows the fear of inadvertently producing a privileged document.
No matter how many times everyone goes over the documents, there
is always that nagging worry that a privileged document has been
In Texas, there are two primary rules regarding inadvertent disclosure
of privileged documents:
A party who produces material or information without intending to waive
a claim of privilege does not waive that claim under these rules or the
Rules of Evidence if—within ten days or a shorter time ordered by the
court, after the producing party actually discovers that such production
was made—the producing party amends the response, identifying the
material or information produced and stating the privilege asserted. If
the producing party thus amends the response to assert a privilege, the
requesting party must promptly return the specified material or
information and any copies pending any ruling by the court denying the
Tex. Rules of Civ. Prod. 193.3(d).
A person upon whom these rules confer a privilege against disclosure
waives the privilege if:
(1) the person or a predecessor of the person while holder of the
privilege voluntarily discloses or consents to disclosure of any
significant part of the privileged matter unless such disclosure itself is
(2) the person or representative of the person calls a person to whom
privileged communications have been made to testify as to the person’s
character or character trait insofar as such communications are relevant
to such character or character trait.
Tex. Rules of Evid. 511.
It seems so simple, doesn’t it? If you accidently produce a
privileged document, just amend your response to assert a privilege and
request the document be returned. The requesting party has to return the
document until the court rules otherwise. However, it’s not always that
In, Granada Corp., et al. v. The Honorable First Court of Appeals,
844 S.W.2d 223, (Tex. 1992) rehearing overruled), the court stated
that the producing party must do more than show that the document was
produced inadvertently. "[T]he producing party has the burden of
justifying preservation of privilege by showing that the circumstances
demonstrate the involuntariness of the disclosure." Id. at
227. The court found that the producing party did not take advantage of
all the possible opportunities to prevent involuntary disclosure.
Specifically, the documents at issue weren’t segregated in the initial
review of documents, the attorney who reviewed the documents prior to
production did not remove the documents at issue, and the documents weren’t
removed after the requesting party reviewed the documents and provided the
list of documents it wanted to be copied. In addition, the production of
the documents at issue wasn’t discovered until a year after they were
produced, when the documents were marked as exhibits in a deposition.
Therefore, the court ruled that the producing party waived any claim to
privilege because the producing party failed to meet the burden of
establishing that the disclosure was involuntary.
The federal rule regarding inadvertent production of privileged
documents is Federal Rule of Evidence 501:
Except as otherwise required by the Constitution of the United States
or provided by Act of Congress or in rules prescribed by the Supreme
Court pursuant to statutory authority, the privilege of witness, person,
government, State, or political subdivision thereof shall be governed by
the principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and experience.
However, in civil actions and proceedings, with respect to an element of
a claim or defense as to which State law supplies the rule of decision,
the privilege of a witness, person, government, State, or political
subdivision thereof shall be determined in accordance with State law.
Federal courts have tended to follow a five-part test from Hartford
Fire Insurance Co. v. Garvey, 109 F.R.D. 323 (N.D. Cal. 1985): (1) the
reasonableness of precautions taken to prevent disclosure; (2) the amount
of time taken to remedy the error; (3) the scope of discovery; (4) the
extent of the disclosure; and (5) the overriding issue of fairness.
In Alldred, et al. v. City of Grenada, et al., 988 F.2d 1425
(5th Cir. 1993), the Fifth Circuit agreed with this approach and affirmed
a lower court’s ruling. The court determined that even though the
producing party hadn’t taken reasonable precautions to avoid disclosure,
the producing party could have reasonably discovered the disclosure, and
that there was complete disclosure because the requesting party had become
aware of the contents of the privileged materials. Moreover, the court
found that the fairness factor outweighed these factors and thus, the
privileged materials were returned to the producing party.
In Apex Municipal Fund, et al. v. N-Group Securities, et al.,
841 F.Supp. 1423 (S.D. Texas, 1993), the court ruled that the producing
party had waived privilege when a former employee of the producing party’s
client produced privileged documents. The former employee testified that
when the Houston office of the producing party closed, the documents were
effectively abandoned by the company. He then produced the documents to
the requesting party in response to a subpoena. He also testified he was
never contacted by his former employer’s attorneys and his former
employer never attempted to retrieve the documents. In addition, the
producing party took no action for a year after the documents were
produced which the court determined to exemplify a careless attempt to
The case that originally brought my attention to this issue is Amgen,
Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287 (D. Mass. 2000).
In this case, the producing party (Hoechst) had identified four boxes of
documents which contained only privileged documents. These documents were
separated from the non-privileged, responsive documents, and put on a
separate shelf. However, when the outside copy vendor came to collect the
non-privileged, responsive documents to be numbered and copied for
production, a paralegal accidentally also gave the copy vendor a box of
privileged documents. The box of privileged documents (approximately 3800
pages) was produced to the requesting party along with more than twenty
other boxes of documents.
Five days later, the attorney for the requesting party (Amgen) sent a
letter to the attorney for the Hoechst asking whether the documents had
been produced unintentionally. After the attorney for Hoechst reviewed the
documents identified in the letter and determined they had been produced
inadvertently because of a paralegal’s error, he then called Amgen’s
attorney and asked that the documents be returned immediately. He also
sent a letter making the same request.
The next day, the Amgen’s attorney sent a letter to Hoechst’s
attorney stating that although Amgen wasn’t prepared to return the
documents, they would segregate the documents and refrain from reviewing
them further. The attorney for Amgen also requested a privilege log for
the documents in question. A couple of weeks later, Hoechst provided a
privilege log which identified each of the documents and the basis for the
claim of privilege. After a few weeks, the attorney for Amgen sent a
letter to Hoechst’s attorney informing him that Amgen would not return
the documents. Hoechst then filed a motion to compel the return of the
The court’s ruling was based on its consideration of five factors
similar to those in Hartford Fire Insurance Co. v. Garvey, 109
F.R.D. 323 (N.D. Cal. 1985): (1) the reasonableness of the precautions
taken to prevent disclosure; (2) the amount of time it took the producing
party to recognize its error; (3) the scope of the production; (4) the
extent of the disclosure; and (5) the overriding interest of fairness and
Although the court found that the producing party had attempted to keep
the privileged documents segregated by putting them in separate boxes on
separate shelves, it also noted that these precautions were obviously not
adequate and that there were additional precautions that easily could have
been taken. For example, the court pointed out that when the documents
were returned from copying by the outside vendor, an attorney or legal
assistant should have reviewed the documents to ensure that the proper
documents were copied. The court stated that since this disclosure could
have been easily prevented, Hoechst’s precautions weren’t reasonable.
The court also noted that the producing party took five days to recognize
the error, and then only after it was pointed out by the requesting party.
In addition, the court pointed to the volume of the privileged
documents produced and observed that an occasionally inadvertently
produced document would be more understandable in a review of over 200,000
documents and production of over 70,000 documents in this case. However,
the substantial release of privileged documents meant that little could be
done to undo the damage. Although Amgen stopped its review of the
documents pending the court’s ruling, other personnel besides the
requesting attorney were involved in reviewing the documents. Therefore,
the court concluded that the scope of the disclosure in this case was
"dramatic." Amgen, 190 F.R.D. at 293.
The court acknowledged that although the producing party might be
disadvantaged by the conduct of its attorneys,
"it would be unjust to reward such gross negligence by providing
relief from waiver. In fact, if the Court does not hold that waiver has
occurred under the egregious circumstances here presented, it might as
well adopt the ‘never waived’ rule and preclude such a holding in
all cases." Id.
Thus, whatever precautions you may be taking to prevent inadvertent
disclosure of privileged documents, you should probably add additional
steps. No matter how many people have reviewed the documents to make sure
all privileged documents have been removed, go over them one more time.
Keep privileged documents segregated. Check when the copies come back that
no privileged documents have been produced. If you Bates number your
privileged documents, you could use colored Bates labels, or copy
privileged documents on colored paper. Colored paper would be easy to spot
in a stack of documents.
You might also want to consider adding more documentation of each step
of the production process. For example, a letter to the outside copy
vendor listing the Bates ranges of documents to be copied and which are to
be produced. You and the vendor could then check off the items in the
letter before the documents are removed for copying and after they are
returned. A letter to the requesting party listing the Bates ranges of
documents that will be available for inspection and copying might also be
a good idea. Then, if a privileged document is inadvertently produced, you
will at least have documentation of the Bates numbers you intended to
Despite the fact that we are often in a hurry to review and produce
documents, remind yourself (and your attorneys) that you may be called
upon to provide evidence that you took all reasonable steps to
prevent inadvertent disclosure of privileged documents.