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Minding your Ps and Qs ... and your @s and *s: what should you do if the defendant has given you electronically stored information that you think has been disclosed inadvertently? And what can you do to avoid making the same mistake yourself?

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The modern world has been engineered and defined by our relationship with computers. Computers function simultaneously as tools of communication and tools of record-keeping, so they are full of what is known as electronically stored information (ESI).

Attorneys have had to deal with rules on inadvertent disclosure of information since long before computers, but now we are measured by a new standard regarding ESI. Whether you are a technophobe or a technophile, you must be prepared to deal with discovery in the Information Age.

Unintended disclosures of ESI typically involve either attorney-client privilege or attorney work product. Rule 26 of the Federal Rules of Civil Procedure provides that "parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." The attorney-client privilege is the most common type of privilege in litigation. Its underlying purpose is to promote a free exchange between lawyers and clients and to encourage people to seek legal advice. (1)

Work product, on the other hand, "seeks to enhance the quality of professionalism within the legal field by preventing attorneys from benefitting from the fruit of an adversary's labor." (2) It routinely includes interviews, statements, memoranda, correspondence, and mental impressions of counsel.

Courts and Congress have created rules to protect privileged and work-product information, acknowledging the detriment to the legal profession if such materials were freely discoverable. But how should the rules be applied when ESI materials are produced inadvertently?

A special problem

The problem of inadvertently disclosed information is as old as discovery itself. However, unique issues inherent in the management and review of ESI vastly increase the probability that any production will include protected documents. Thorough review is hampered by short court-ordered deadlines for production and the cost of examining each document.

Courts generally follow one of three schools of thought to determine whether a party that inadvertently discloses information waives its ability to protect that information. Under the strict approach, protection is almost always waived, even if disclosure is inadvertent. (3) Under the lenient approach, waiver requires intentional and knowing relinquishment of the privilege; inadvertent disclosure can cause waiver only through gross negligence.

For example, in Bensel v. Air Line Pilots Association, the District Court of New Jersey found that plaintiff counsel was grossly negligent in providing opposing counsel with documents bearing the name and letterhead of a law firm that represented the client. Because those documents were clearly privileged on their face, counsel had abandoned the attorney-client privilege regarding them. (4)

Federal Rule of Evidence...

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