A Colorable Claim of Privilege Triggers a Duty to Alert Opposing Counsel of Inadvertently Produced Documents

Every litigation attorney has reviewed documents produced by adverse parties in discovery, and many of us have had the experience of finding an attorney-client privileged document that was inadvertently produced by the other side.

Every litigation attorney has reviewed documents produced by adverse parties in discovery, and many of us have had the experience of finding an attorney-client privileged document that was inadvertently produced by the other side. We generally assume that we are under an ethical obligation, or required by court rules, or both, to notify the producing party of the inadvertent production and perhaps to return or destroy the documents. However, ethical rules and court rules vary, and they provide little or no guidance for determining whether a particular document should be considered privileged. The Delaware Court of Chancery has recently expressed its view: lawyers should not weigh the arguments for and against privilege or rely on the strength of their own arguments; they should notify the producing party of the inadvertent production if a colorable argument could be made for privilege.

The American Bar Association’s Model Rules of Professional Conduct (which do not apply in Delaware) provide: “A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.” (Rule 4.4(b)).

While “relating to the representation of the lawyer’s client” is broad, the ABA has not provided any guidance for determining whether a document “relates” to the representation.

In Delaware, the Superior Court’s Complex Commercial Litigation Division has a Protocol for the Inadvertent Production of Documents that requires the recipient of “privileged or confidential information or documents” that the recipient “believes were produced inadvertently” to either return the materials to the producing party or notify the producing party of the apparent inadvertent production.

However, the Protocol does not define “privileged or confidential” and does not provide any guidance for determining whether a document is privileged.

For lawyers practicing in the Delaware Court of Chancery, neither the Court’s rules nor the Delaware Lawyers’ Rules of Professional Conduct require a party to notify another party of receipt of inadvertently produced materials. The Court of Chancery’s sample confidentiality stipulation (available on its website) requires a receiving party to refrain from use of, and return or destroy inadvertently produced materials upon notice from the producing party, but it does not require the receiving party to give notice to the producing party.

However, the Court appears to expect it, and to expect a receiving party to give notice if the producing party “might” have a “colorable claim” of privilege. In an oral ruling in Zohar II 2005-1, Ltd. v. FSAR Holdings, Inc., C.A. No. 12946-VCS (Del. Ch. June 7, 2017), Vice Chancellor Joseph R. Slights III gave guidance for determining whether a document should be considered privileged. The Court stated that “under this Court’s precedent … plaintiffs’ counsel’s duty to alert defense counsel is triggered in any instance where a document inadvertently produced is subject to even a ‘colorable claim’ of privilege.” The Court stated “counsel doesn’t get to make its privilege call but must instead allow opposing counsel to be heard on the issue whenever even a colorable claim of privilege might be asserted.” The Court defined a “colorable claim” as “one that has a reasonable chance of succeeding” or “a claim worthy of serious consideration.”

The Court in Zohar found that, although the document in question did not convey any legal analysis or strategy, the Court could “certainly see an argument that the purpose of the communication was to facilitate the rendition of professional legal services to the client.” The Court further stated “we don’t want attorneys making close judgment calls on privilege themselves, hoping that a Court will agree with their privilege analysis after the fact, even if there are potentially good arguments to defeat the privilege or strong arguments that the privilege has been waived, both of which exist here.”

Based on the Court’s ruling, even if the receiving lawyer sees strong arguments that the document is not privileged or that the privilege has been waived, the lawyer must notify the producing party of the potentially inadvertent production.

James G. (Jay) McMillan is a partner in the Wilmington, Delaware office of Halloran Farkas + Kittila LLP. He concentrates his practice in complex corporate and commercial matters, with a particular focus on litigation in the Delaware Court of Chancery. For more information on the firm, visit hfk.law.

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