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On May 30, 2012, the New Jersey District Court found a waiver of privilege had occurred after defense counsel inadvertently disclosed privileged documents in the case of D’Onofrio v. Borough of Seaside Park.  During discovery, counsel had reviewed a total of 14 boxes of documents and a clerical employee was asked to the separate privileged and non-privileged documents.  The employee was to then burn the non-privileged documents to a cd.  The employee did not separate the documents in four boxes.  Counsel did not review the contents of the cd, which contained privileged information.

The court noted the attorney did not correct this issue despite numerous opportunities, including: (1) an instance when the original cd was recalled to remove some of counsel’s comments; the cd was again produced containing the privileged information; (2) an instance when the cd was reproduced after plaintiff’s counsel informed the defendant’s counsel that the disk was unreadable and a quality control audit was performed on the cd prior to again producing the cd to plaintiff’s counsel; and (3) an instance in which plaintiff’s counsel informed the defendant’s counsel that documents on another cd containing information from the same source used by the defense were out of order, yet the defense counsel did not re-review the documents used for the cd.

The attorney did not discover the production of privileged material until eight months later when many of the documents were attached as exhibits to the plaintiff’s briefing on another matter.  It was at this point that defense counsel realized that over 1,000 pages of privileged material had been produced.  Defense counsel immediately requested return of the documents.

In making a ruling on the waiver of privilege, it was determined that though counsel’s initial attempts to prevent disclosure were reasonable, “counsel did not take reasonable steps to remedy the error.”  It was further determined that counsel should have been aware that the error had occurred long before they discovered it.  The three above-mentioned instances should have alerted counsel as to their error and that something had gone wrong with their production and privilege review.  As a result, the court found that privilege was waived on the materials.

This case is a perfect example of the rule we have previously espoused, that it is important to remember that you, not your employees, are responsible for what goes on in (and what goes or doesn’t go out of) your office.   Professional liability avoidance best practices includes careful management of staff.

-Josh J.T. Byrne, Esquire and Shilpa Kadoo (legal intern)