Litigation

Court Rules Mistaken Transmission of Privileged Email Due to Use of "Autofill" Function in Email Did Not Result in Waiver

By reston, Gates and Ellis

Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)

When responding to an email communication from his attorney, defendant mistakenly sent his message to a third party.  As a result, the email was eventually provided to opposing counsel in the litigation.  Plaintiff's counsel refused to return the email upon defense counsel's request and filed a motion for a protective order to which the email was attached.  Defendants then filed a motion to exclude plaintiff's use of the email.  Defendant David Muhs explained that the mistaken transmission occurred when the autofill feature on his email program supplied the wrong address in place of that of the intended recipient.  Conducting its analysis pursuant to Fed. R. Evid. 502, the court determined that privilege had not been waived.

While responding to an email from one of his attorneys, defendant Muhs sought to include his other attorneys in the communication.  When typing the name of one such attorney, however, the autofill function in his email system supplied the address of a third party unrelated to the relevant litigation.  Mr. Muhs failed to notice the error prior to sending his message.  Upon receipt of the email, the third party forwarded the message, which was forwarded again, and was eventually sent to opposing counsel in Mr. Muhs' ongoing litigation.  Plaintiff's counsel immediately notified defense counsel of his receipt of the privileged email, but refused to return it, arguing that FRCP 26(b)(5)(B) only applied to documents disclosed in discovery.  Plaintiff then sought a protective order and attached the email as an exhibit.  Defendants moved to exclude the email from evidence.

After establishing the application of the attorney-client privilege to the email, the court turned to the question of whether the email was protected from waiver, despite its disclosure, by FRE 502.

Relying on Mr. Muhs' unequivocal declaration, the court quickly decided that the email was inadvertently disclosed - the first element for analysis under FRE 502.  A footnote in this portion of the court's opinion also indicates its rejection of the notion that FRE 502 is inapplicable outside of the context of discovery:  'Either the privilege applies or it does not; likewise, the privilege is either waived or it is not.  Whether this takes place within a discovery context is immaterial toward maintaining the privilege under FRE 502(b).'

Turning next to the question of whether reasonable steps were taken to prevent the disclosure, the court recognized the contrast of the present situation to inadvertent production within the context of discovery, where the review protocols of the producing party are examined to determine the reasonableness of the steps taken to prevent disclosure.  The court then undertook an analysis of the reasonableness of Mr. Muhs' reliance on the autofill function, a function he attested he had successfully utilized several hundred times when communicating with counsel.  The court stated:

Mr. Muhs' care in addressing his email was hasty and imperfect.  Nevertheless, "he relied on a system that had worked in a particular way in the past to continue working the same way in the future."  Under these circumstances, it cannot be said that Mr. Muhs' isolated act was unreasonable.  Therefore, the Court finds that Mr. Muhs took reasonable steps to prevent the disclosure.

[Citations omitted.]

Finally, the court turned to whether reasonable steps were taken to rectify the error upon learning of the inadvertent disclosure.  In this case, on the same day defense counsel became aware of the disclosure, he contacted plaintiff's counsel to assert the attorney-client privilege and request the email's return.  The next day, Mr. Muhs' local counsel also contacted plaintiff's counsel to reiterate the claim and again request the email's return.  Accordingly, the court determined that the final element of FRE 502 was also satisfied.

Notably, the court indicated in footnote that shortly after learning of the 'misdirected' email, defense counsel advised Mr. Muhs to take a number of steps to prevent future mis-sent emails, including:  '(1) erasing [the relevant third party's] address from Mr. Muhs' email program's address book, (2) checking to see if the autofill program worked as expected, (3) sending email to just one attorney who would then forward it as necessary, and (4) creating a "group" to send certain emails rather than relying on the autofill process.'

Having determined all elements of FRE 502 were satisfied, the court granted Defendants' Motion to Exclude Evidence and ordered plaintiff to destroy all versions of the email in its possession and for the copy in the court's file to be placed under seal.

A copy of the full opinion is available here.

Full post as published by eDiscovery Law on December 11, 2009 (boomark / email).