Inadvertent Disclosure of Privileged Information – Flawed Balanced Approach

Sitterson v. Evergreen School Dist. No. 114, — P.3d —- (Wash.App. Div. 2 Nov 25, 2008) (NO. 36218-0-II)

Thousands of pages of documents are routinely produced in litigation. Normally, certain documents, like letters from attorneys to clients, are placed on the privilege log. Occasionally, a mistake is made and the privileged document is produced. The law has moved away from a strict waiver for inadvertent production toward a more liberal approach that allows the privilege to be reasserted in certain situations. This is known as the “Inadvertent Disclosure” Rule.

Sitterson is the first Washington case on the subject. Generally Washington follows the federal rules but has not yet adopted the most recent changes. In that situation, Washington courts properly refused to legislate the rule. See State v. Darden, 145 Wn.2d 612, 627, 41 P.3d 1189 (2002) (refusing to adopt a new privilege under ER 501 that was accepted by federal courts under Fed.R.Evid. 501 because federal rule is “entirely different” from Washington rule). However if there is no rule in place, the court has the freedom to adopt one.

As of September 19, 2008, Federal Rule of Evidence 502(b) provided that a disclosure made in a federal proceeding does not operate as a waiver if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

From a policy standpoint, the court must weigh two competing doctrines: 1) Full disclosure of all the facts – decisions of a court should be based on all the relevant facts; and 2) Right to counsel – clients and their attorneys must be able to speak freely in order to allow the advocacy system to work.

The Sitterson court examined four approaches and decided to follow Alldread v. City of Grenada, 988 F.2d. 1425 (1993), and adopted its five-part test: (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) the overriding issue of fairness.

Although taken at face value the Alldread test seems to promote fairness, in reality it is a flawed rule that leads to arbitrary decisions that make it appear that the court is merely giving lip service to the test.

Alldread is defective because it does not require proof that the disclosures were inadvertent. The Sitterson court criticized the parties and the trial court for not considering whether the disclosures were inadvertent but did not expressly add inadvertence to the Alldread factors. Instead it assumed the disclosures were inadvertent.

In applying the 5 Alldread factors, Division II ruled against the School District on issue 1 because no evidence was introduced showing what precautions taken to prevent disclosure. No doubt the District would reply that it did not know Division II would adopt Alldread. Division II ruled against the District on issue 2 because it did not discover the inadvertent disclosure until it prepared for trial 3 years after the disclosure. Division II ruled against the District on issue 3 by deciding that the production of 439 documents was not a large number. The court did not consider how many pages were included with each document. The court did not separately consider issue 4 because it is essentially the same as issue 3 (another defect in the Alldread decision). Finally it did not consider the disclosure unfair because only discredited the District’s lawyers in front of the jury. The reasoning is inexplicable.

Division II has done a disservice to the court system by adopting the flawed Alldread test and should have looked to rules more carefully crafted by skilled practitioners like the new federal rule.

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