Waiving Privilege: A Discovery War Story

So yesterday was a snow day for me, which meant I got to sit at my kitchen table and review my case files over and over again, churning out the billables in the comfort of my home and a pair of fleece pajamas with fucking labs on them. It was pleasant. I enjoyed it.

As part of reviewing my case files, though, I also ended up reviewing some discovery production that was going out soon, an electronic copy of which I’d uploaded to a secured cloud server so I can be a redacting fool from anywhere in the world. Most lawyers hate going through discovery production to the opposing party, and I’ll admit it’s a pretty big pain in the ass. It takes forever and can suck away entire days. Hell, that’s why big firms hire doc reviewers and first year associates to sit around and do nothing but obsess over what’s in each and every document.

Me, however? I like to do it all myself when possible, because what you produce in discovery to an opposing party can seriously fuck your case up, and I’m the type of guy who, at the end of the day, believes the buck stops with me and nobody else. I learned this from my boss, who from day one has made it very clear that on each and every one of his cases, the buck stops with me and nobody else.

So let’s talk about that, how trusting your case to someone else can seriously fuck you over and why it may be worth your time to go through the documents your own goddamn self.

I’m gonna tell you fucktards a story to illustrate my point today, so gather round children.

Recently I received production of documents from an opposing party immediately prior to deposing the opposing party. I mean immediately prior, like 10 minutes before the deposition took place. This isn’t uncommon, as some assholes feel the need to complicate your life by handing you a pile of documents and expecting you to just glance at it before continuing with the depositions, fully aware that you’ll likely need the court’s permission to bring their client back into the room. It’s a dirty trick, but not an uncommon one.

My opposing counsel was a slicked-back hair, grinning muppet of a buffoon from a giant local firm. In one of our conversations he discussed how the whole firm was at a “retreat” with the exception of him and his amazing work ethic, which had enabled him to be named partner. This is the type of guy who looks around a clothier’s shop and says “I like this shirt, but could you make it more garish and put my fucking initials in like 8 different places on it?” That type of guy. The guy who essentially brings a portable law office in a series of bags with him to a deposition.

Meanwhile, I was wearing a shirt I had bought from Target and a suit that I bought off the rack at Boscov’s. The difference between the attorneys in the room was fucking palpable. One looked like a well-dressed asshole, while the other looked like he had ran out and bought an ill-fitting suit the night before and then forgotten to remove the tags from it. I can sort of understand why they thought I may be a pushover.

Anyhow, he handed me a stack of documents, and we went on with the deposition. However, during the lunch break, while he and his client were off enjoying a good meal, I went through the stack of documents at my desk and found it: A letter between the defendant’s former counsel and the defendant recognizing the legal position they were in and the importance of what my client was doing. It contained several choices, including statements of why certain things that the Defendant was relying on should be done. Considering that their client was playing the “poor pitiful me, I had no idea what was going on and no choice in the matter” card as a major part of their defense, this was a big fucking deal. It was glorious, it was amazing, it shot their defense to shit, and it was almost certainly privileged.  But, and this is important assholes, there was a Bates Stamp in the lower right hand corner, so it was definitely part of the production.

After lunch, after he examined his client who cried poverty and misunderstanding, I was up to bat again, and reached over to my folder, producing that definitely privileged letter. I handed it to his client and said “What’s that?”

“That’s…That’s a letter between me and my former lawyer,” the Defendant answered, “It’s private.”

“You remember when I asked if you read the discovery responses?” I asked.

“Yes.”

“You remember when I asked if you signed the verification for those responses?”

“Yes.”

“You remember saying you did?”

“Yes.”

“Look at the lower right hand corner of that document. Do you see the stamp there?”

“…Yes.”

“So this was part of the production you reviewed and verified?”

“…Yes…”

“Objection!” yelled opposing counsel, “This is privileged information and an inadvertent disclosure! My client certainly never meant to…”

“This was in the production of documents made by your office and which your client signed a verification to, under penalty of 18 Pa.C.S. 4904, stating they read this information and gave it in response,” I answered, “Either your client waived privilege by producing this document, or your client committed a misdemeanor by signing the verification without reviewing the production. Which is it?”

[Now, that’s not an exact quote. I’m pretty sure there was more yelling involved in my response. But we’ll go with it here, because it makes me sound reasonable, educated, and respectable.  At least more so than my likely actual response of “That’s a bullshit objection, and you know it.”]

“That’s ridiculous, under Rule 26…”

“This isn’t Federal court, Rule 26 doesn’t apply. Rule 4009.12 does, and that says your client had to review and verify the production. Your client waived privilege, or your client lied on the verification. It’s one or the other, and the judge will review this on the record. You want it excluded, make your motions and we’ll make ours, but this is a waiver.”

[Once again, my actual response was probably something along the lines of “Read your damn rules and the caption, this is a state court action and 26 doesn’t apply. Your client lied or they reviewed it, you don’t get it both ways.”]

Rule of Evidence 502 states…”

“Federal Rule of Evidence 502 hasn’t been adopted in this Commonwealth. It doesn’t apply. I’m going to move it into evidence, you can make your objections, but unless you’re going to instruct your client not to answer I’m going to ask questions about this.”

[Actual response was likely something like: “Yeah, good luck making that argument. If you aren’t instructing your client not to answer, let’s keep this ball rolling.”]

And so I continued to question his now obviously rattled client, who, over the course of the few minutes before, had realized a damaging letter had been produced by counsel, that they had failed to review the production themselves, and had heard me say things like “committed a misdemeanor” on the record in relation to doing so. I grilled his client over each and every portion of that letter, pointing out where the prior lawyer suggested they take action or not take action, but recognizing my client’s rights through the whole thing, and laying bare the blatant misrepresentations that had been previously made. It was a wonderful thing to do, and became even more wonderful as we were wrapping up the deposition and I looked at opposing counsel.

“We’re probably going to subpoena their prior attorney to be deposed regarding this,” I said while packing shit up.

“That’s ridiculous,” he answered.

“Your client waived privilege. Only question left is the extent of that waiver. If we subpoena him, we can make these arguments to the court,” I responded before we went off the record, “But this waiver opens that door for us, and you know it.”

So, what are the two main lessons learned here?

Review Your Fucking Production Personally.

Well, the first part is that the attorney who handed me the production is obviously not the one who reviewed the production documents prior to providing them to me. That’s an issue, because whether or not the documentation was compiled by some poor schlub working doc review, some law clerk muscling his way through 2L, or some poor first-year associate, the buck begins and ends with the lawyer who has the case. In no situation should discovery responses and production be going out of the office without the lawyer who’s actually working the case reviewing them. It’s your case, the buck stops with you, asshole.

Plus, and no shit, it makes you look incompetent as hell to your client to have opposing counsel grilling them on a privileged document you should have caught in the first place.  I mean, these documents were Bates-Stamped and several were redacted. Someone obviously reviewed the whole of the discovery production several times. Someone took the time to preserve privilege on several emails and append the Bates to the document, but couldn’t do a review to determine if a letter written on law office letterhead was within the scope of privilege or not.

I’d be willing to bet that someone is no longer employed. People get fired over shit like this. “Oopsie!” doesn’t tend to carry much weight with a client whose position can be weakened because you over-relied on minions instead of stepping down from the ivory tower to review the work yourself.

Know Where You Are.

If you’re in a state court, you can’t rely on the Federal rules.  The Federal rules protect you a hell of a lot more than most state rules, especially in situations like this. However, just raising an objection under the Federal rules isn’t going to be enough if the state rules don’t recognize it. Here I understand that opposing counsel was trying to argue the inadmissibility of a produced document due to inadvertent disclosure, and maybe he can get some legs to that as Pennsylvania will allow a clawback under certain circumstances, but the state rules provide none of the protections he’s looking for. I was under no duty to advise and destroy, nor is the clawback automatic because 1) his client is assumed by the state rules to have verified the contents of the production; 2) the attorney and client must raise the claim or privilege and did not; and 3) Pennsylvania has not adopted F.R.E. 502 which grants a heightened level of protection.

This is even more important when you’re using a doc reviewer, law student, or recent bar passer. Most of them are familiar with the Federal rules, because that’s what’s taught in law school. However, if you’re not in Federal court, those rules don’t mean shit. You’re the lawyer, you should be making sure their work comports.

Those are really the two big ones: review all production personally, and know the rules governing discovery for the specific jurisdiction you’re in.

Other than that, if you’ll excuse me, I have more shit to prepare for today and need to catch my ass up from spending a day working out of the house yesterday…and I also need to go buy some more dip.

-BB

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.