As pretrial discovery becomes more complex, new discovery disputes will arise with sufficient frequency to require prompt and consistent methods of resolution. The Supreme Court of Florida recently amended the Florida Rules of Civil Procedure to address one such issue that is likely to rear its head much more often in this age of digital records and electronic discovery.
Rule 1.285, “Inadvertent Disclosure of Privileged Materials”, takes effect on January 1, 2011. It allows any party (or non-party) who has inadvertently disclosed materials it believes to be privileged (“the disclosing party”) to assert that privilege by serving written notice on the party to whom disclosure was made (“the recipient party”). Rule 1.285(a) requires that the notice be served within 10 days of the disclosing party actually discovering the disclosure. The notice must also state with particularity the materials as to which the privilege is asserted, the nature of the privilege asserted (e.g. attorney-client, work product), and the date on which the disclosing party actually discovered the inadvertent disclosure.
Receipt of a notice under Rule 1.285(a) imposes some immediate obligations on the recipient party. First, the recipient party “shall promptly return, sequester, or destroy the materials specified in the notice, as well as any copies of the material.” In addition, if the recipient party has in turn disclosed the putatively privileged information to any other party or person, the recipient party must promptly notify those to whom it furnished the information of the fact the notice has been received and the effect of Rule 1.285. The recipient party must also take “reasonable steps” to retrieve information it has disclosed to other parties or persons.
This is not to say that the recipient party cannot challenge the disclosing party’s claim of privilege. Rule 1.285(c) states that within 20 days of service of the original notice from the disclosing party, the recipient party may serve notice of its challenge on the disclosing party. Failure to serve a timely challenge constitutes a waiver of the right to challenge. The notice must state the grounds for challenging the privilege. While the rule does not list all possible grounds for a challenge, it states that the grounds may include (1) that the materials are not privileged; (2) that the disclosing party is without standing to assert the privilege; (3) that the disclosing party failed to serve timely notice under Rule 1.285(a); or (4) that the circumstances warrant a finding that the disclosing party has waived its right to assert a privilege over the materials.
Rule 1.285(d) states that once an order is entered determining either that the materials are privileged or that the right to challenge the privilege has been waived, the court is to direct what shall be done with the materials “so as to preserve all rights of appellate review.” Interestingly, subsection (d) does not indicate what happens if the trial court finds that the materials are not privileged, or that the privilege has been waived. Presumably, however, the disclosing party’s recourse would be to seek a writ of certiorari from the appellate court.
Rule 1.285(b) also makes clear that it does not supplant an attorney’s ethical obligations under Rule 4-4.4(b) of the Rules Regulating The Florida Bar. Rule 4-4.4(b) states, “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Attorneys who make use of such material run the risk of disqualification. See, e.g., Fla. Bar Prof’l Ethics Comm., Formal Op. 07-1 (2007). This is particularly true where the information gives the recipient an unfair informational or tactical advantage, or where the recipient is guilty of inequitable conduct in obtaining the information. See, e.g., Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010); Minakan v. Husted, 27 So. 3d 695 (Fla. 4th DCA 2010). Significantly, in both of these recent cases, the information at issue was electronic, consisting of e-mail and documents contained on a USB drive.
The very adoption of Rule 1.285 suggests a growing need to address the issue of inadvertently disclosed privileged material. The ease with which information may be stored electronically is likely to lead to more accidental disclosures. Will Florida’s overburdened trial courts be able to accommodate an increase in discovery disputes? Depending on the dimensions of the particular case and the judge’s caseload, the parties and counsel should consider seeking the appointment of a special magistrate under Rule 1.490 to handle such matters. The special magistrate will be able to devote larger blocks of undivided attention to the dispute (a critical factor where e-discovery is involved), and may well reach a resolution before the trial court could. Obviously, the cost of engaging a special magistrate must be a consideration, and one party or another may file exceptions to the magistrate’s report, which must then be resolved by the court. Nonetheless, use of a special magistrate may produce a faster yet equally satisfactory solution in this realm of discovery disputes.