While I was off running silly contests and generally doing my best to single-handedly drive up our insurance ratesthe Supreme Court of Virginia handed down a new batch of opinions last week.

Of particular note is Walton v. Mid-Atlantic Spine Specialists, P.C., which addresses the attorney-client privilege, and specifically the issue of inadvertent waiver.

Walton is a med mal case. The defendant doctor wrote a letter to his lawyer in which he suggested that he may have reviewed the wrong x-ray before assessing the plaintiff. That letter was produced in a workers’ comp proceeding, and it eventually made its way into the plaintiff’s hands.

Walton advised the defendants that she had this letter in her interrogatory answers. About a year and a half later, the defendants moved for a protective order against the use or distribution of the letter. The circuit court granted that order. It found that the letter was privileged and had been involuntarily disclosed, so the privilege had not been waived. The plaintiff went to trial without the letter, and the jury found in favor of the defendants.

On appeal, the Supreme Court reversed. The dispositive issue before it was whether the doctor’s inadvertent disclosure of the letter waived the attorney-client privilege. The Court ruled that it had.

At the outset, the Court noted that the trial court had erred as a matter of law by finding that the disclosure was involuntary, as opposed to inadvertent. In the waiver context, “involuntary” means that another person disclosed the document through criminal activity or bad faith, without the consent of the proponent of the privilege. Here, all of the evidence indicated that the defendants mistakenly produced the letter, so the disclosure was inadvertent, not involuntary.

The Court explained that, once a trial court finds that a privileged communication has been inadvertently disclosed, it must then determine whether the attorney-client privilege has been waived. The Court adopted a multi-factor test, under which waiver may occur if the disclosing party failed to take reasonable measures to maintain the document’s confidentiality, or to take prompt and reasonable steps to rectify the error. In making this determination, the court is to consider:

  1. the reasonableness of the precautions taken to prevent inadvertent disclosures;
  2. the time taken to rectify the error;
  3. the scope of the discovery;
  4. the extent of the disclosure;
  5. whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper purposes in the litigation, making it unfair to allow the party to invoke confidentiality under the circumstances.

See also Va. Code Section 8.01-420.7. None of these factors is independently dispositive, and the trial court must also consider pertinent case-specific factors.

Applying this test, the Court found that the defendants had failed to take reasonable measures to maintain the confidentiality of the letter, and therefore had waived the privilege. You can see where the Court is coming from. Among other things, the doctor kept privileged legal communications in a white notebook in his office, which was not marked privilege or confidential. He kept medical records in a manila folders in his office. The letter itself was not marked privileged or confidential. The doctors and their lawyers used a vendor for the document production, and there was no evidence that they conducted a privilege review (or any review) of the documents to be produced.

Lessons from Walton:

  • No blanket waiver. The Court specifically rejects a blanket waiver rule for inadvertent disclosure. I’m usually a bright-line rule kind of guy, but the blanket waiver rule is unduly harsh. I started my legal career at a big firm in DC, where we routinely did large document productions. I still have nightmares about blanket waiver. The Walton rule is better.
  • Make an effort. It probably wouldn’t have taken much for the Walton defendants to avoid waiver. And when I say “not much,” I mean taking simple precautions like writing “privileged and confidential” on communications they intended to be privileged and confidential, or having a paralegal do a quick priv review before producing documents. (Heck, I bet my collection of rubber-stamp warnings up there got your attention, and it doesn’t even say “privileged.”) The defendants did not even ask for the letter back until about a year and a half after they received the plaintiff’s interrogatory answers. Just making a token effort to protect the privilege would have left the defendants in an inestimably stronger legal position.
  • Let’s discuss live. I had a tough time getting past a threshold issue in Walton: what was the doctor thinking when he wrote that letter in the first place?! The informality of email and text messaging has made people stupid when it comes to what they put in writing. Make sure that your clients (and coworkers) understand that, if they have something important to say to you, they should pick up the phone and call. If necessary, they can follow up with a thoughtful letter or email–one that they’d feel comfortable seeing on the front page of the newspaper. When in doubt, let’s discuss live.

Overall, Walton adopts a fair and reasonable approach that takes a lot of the sting out of inadvertent disclosure. With the growth of electronic discovery, this is certainly a welcome development.