May Litigants Advance Their Case Using Purloined Privileged Documents?

September 14, 2022

Given the vulnerability of electronic communications to intrusion, lawyers sometimes obtain and may be tempted to use documents that their clients have inappropriately obtained from an adversary – even privileged documents. Those lawyers are not bound by the ethics rules governing "inadvertently" transmitted documents, but most courts unsurprisingly condemn such lawyers' use of purloined privileged documents.

In Mayorga v. Ronaldo, the court blasted plaintiff's lawyer for attaching "purloined documents" in plaintiff's effort to unwind her confidential settlement of allegations that she was sexually assaulted by soccer superstar Cristiano Ronaldo. Case No. 2:19-cv-00168-JAD-DJA, 2022 U.S. Dist. LEXIS 103951 (D. Nev. June 10, 2022), appeal filed, No. 22-16009 (9th Cir. July 11, 2022). Among other things, the court ridiculed plaintiff's argument that Ronaldo waived privilege by not creating a log of the purloined protected documents – bluntly concluding that "[t]his 'gotcha' result cannot be the intent of these procedural rules." Id. at *24. The court also noted that "the scarcity of cases addressing similar conduct suggest that few lawyers, if any, stoop to this level [of misconduct]." Id. at *42. The court ultimately dismissed plaintiff's claim – concluding that she "loses her opportunity to pursue this case and attempt to unwind the settlement of claims," "[b]ecause of her attorney's abuses and flagrant circumvention of the proper litigation process." Id. at *53.

As tempted as lawyers might be to take advantage of helpful documents falling into their hands from the client's or a third party's misconduct, they should remember such harsh judicial criticism and possible outcome in resisting that temptation.

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