What Type of Privilege Disclosure is “Inadvertent”?

September 12, 2007

Nearly every court agrees that a client or lawyer intentionally disclosing privileged communications waives the privilege. Most courts take a much more nuanced approach toward disclosures deemed to be “inadvertent” — usually assessing the care taken by the disclosing party, the extent of disclosure, whether the disclosing party quickly sought to retrieve any inadvertently produced privileged documents, etc.

Before applying this more forgiving attitude, courts must first determine whether the disclosure was “inadvertent.” In Pinnacle Pizza Co. v. Little Caesar Enterprises, Inc., Civ. No. 04-4170, 2007 U.S. Dist. LEXIS 48845 (D.S.D July 3, 2007), defendant Little Caesar’s lawyer asked plaintiff Pinnacle’s president during a late 2006 deposition about the results of some trademark research. Pinnacle’s lawyer did not object to the question, and did not move to strike the president’s answer — which disclosed a trademark lawyer’s opinion. When Little Caesar served a subpoena on Pinnacle’s trademark lawyer about six months later, Pinnacle argued that its president’s deposition testimony was inadvertent. The court agreed, inexplicably noting that Pinnacle “employed reasonable precautions to prevent inadvertent disclosure of privileged material.” Id. at *14. Ten days later, a California appellate court dealt with a similar issue. In Salazar v. Patel, No. F049202, 2007 Cal. App. Unpub. LEXIS 5704, at *20 (Cal. Ct. App. July 13, 2007) (citation omitted), a personal injury plaintiff’s lawyer tapped his fingers on a courtroom table during the trial to draw his client’s attention to a post-it note that read “‘stretch and twist in 15 seconds.'” Defendant’s lawyer could also read the post-it note, and commented during his closing that approximately 15 seconds after reading the note, the plaintiff “‘stood up in front of the jury and began to stretch and twist her body with a look of pain and anguish on her face.'” Id. (citation omitted). The court ruled that any disclosure of the privileged communication was inadvertent — and granted plaintiff a new trial.

Many courts would not be this forgiving.