As a labor and employment lawyer, you are likely all too familiar with that Friday afternoon phone call from a client wanting to fire an employee. Oftentimes, and sometimes regardless of your advice, the employer terminates the problematic employee on the spot, thinking (hoping?) they won’t have to deal with them on Monday morning or in the future for that matter. But what about when what seemed to be a somewhat amicable, mutual parting-of-the-ways on a Summer Friday turns into a full-blown lawsuit with a Case Management Order including ESI discovery deadlines?  The extensive document production and potential involvement of multiple attorneys are circumstances ripe for mistakenly or inadvertently sharing a privileged document. Unfortunately, if you do accidently copy opposing counsel on an email or include privileged information in your document production, waving your magic wand and saying, “Abracadabra!” won’t make it disappear.   

There are many articles that discuss what to do when you are on the receiving end of an inadvertently disclosed document. ABA Model Rule 4.4(b) states:

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. 

Whether additional action by the lawyer is necessary is a matter governed by your jurisdiction’s laws. In fact, the Comment to Rule 4.4 recognizes that whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of the ABA Rules. As such, lawyers must check their state laws concerning their ethical obligations when they are mistakenly copied on an email intended for someone else or receive a document inadvertently produced by opposing counsel.

Given the number of potential documents and players in an employment case, this area of practice is more at risk for inadvertent disclosure. So what do you do if you are the one that made the mistake? Let’s consider some tips for avoiding the dreaded inadvertent disclosure:

Sleight of hand – As you have probably experienced firsthand, some people just can’t be trusted with the “reply all” feature on their email. Avoid being the one who shares privileged information by replying to all or accidentally including an adverse party because the address automatically populated when you were adding the intended recipients. Instead, compose the email and forward it to your legal assistant to manually add all the email addresses. Make it a habit to always double check the intended addressees before hitting send.

Cast a spell – Or just conjure up a clawback provision for your ESI agreement before you start the voluminous document exchange. That way, you can agree with counsel on a procedure to identify and retrieve any privileged documents and avoid waiving the privilege.

Hocus Pocus – With AI now being frequently used in large-scale document productions, it is easy to rely on technology to pull the requested documents from your client’s server. The search features are really like pulling a rabbit out of a hat. However, your document production still requires that human touch. Make sure you or someone on your team still takes the necessary visual review to pull any privileged or confidential documents and prepares the necessary privilege log.

Although mistakes can happen, avoid the circumstances in which you find yourself wishing you could perform a trick to retrieve that email from an unintended recipient’s inbox or the document production. After all, you’re a lawyer, not a magician (contrary to what some clients may think!).