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Waiver of Attorney Client Privilege

Published by on June 29, 2010

In a case worth reading for any “client,” the Virginia Supreme Court held in Walton v. Mid-Atlantic Spine Specialists, P.C. that the defendant doctor had waived the attorney-client privilege when he inadvertently produced a letter he had written to his attorney because he failed to take sufficient precautions to prevent the disclosure.  A copy of the opinion can […]

In a case worth reading for any “client,” the Virginia Supreme Court held in Walton v. Mid-Atlantic Spine Specialists, P.C. that the defendant doctor had waived the attorney-client privilege when he inadvertently produced a letter he had written to his attorney because he failed to take sufficient precautions to prevent the disclosure.  A copy of the opinion can be found here.  More after the break.

Angela Walton was treated for a work-related wrist injury by Mid-Atlantic Spine Specialists beginning in 1998.  She later filed a medical malpractice suit against the doctors related to the treatment, examination, and diagnosis of her injury.  Dr. Jeffrey Moore had taken two x-rays of Walton’s wrist, one in November and one in December 1998.  In his notes following the December exam, he noted that the alignment “look[ed] good.”  In a letter he wrote to his attorney almost three years later, however, Dr. Moore stated that he was not sure that he had been looking at the correct x-ray when he wrote those notes, and that he did not consider Walton’s alignment to be “good” in the December x-ray.  The letter was then produced during discovery in the workers’ compensation case, and produced to Walton’s attorney during the malpractice case.  The doctors filed a motion for a protective order asserting the attorney-client privilege.  After several hearings on the motion, the circuit court held that there had been no waiver of the privilege and concluded that the letter had been involuntarily produced because there was no way to determine how exactly it had been disclosed. 

On appeal to the supreme court, Walton argued that the circuit court had erred in ruling that the letter had been involuntarily produced because there was no evidence of bad faith or criminal activity; instead, Walton argued that the disclosure had been inadvertent, which would require application of a multi-factor test.  The doctors argued that the disclosure could not have been inadvertent unless it was produced by one of the parties holding the privilege – here either Dr. Moore or his attorney – and that the letter had actually been produced by Mid-Atlantic and the company that assisted in the document production. 

The supreme court found in favor of Walton, holding that that production of the letter was inadvertent, not involuntary.  The court reasoned that whether a disclosure is involuntary is not based on subjective intent; rather, a disclosure is involuntary if it was the result of bad faith or criminal activity.  Thus, the court concluded that the disclosure of the letter had been inadvertent.  The court then articulated a five-factor test for determining when an inadvertent disclosure resulted in waiver of the attorney-client privilege: 

(1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of the discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation, making it unfair to allow the party to invoke confidentiality under the circumstances. 

The court stated that under this approach, a waiver could be found “if the disclosing party failed to take reasonable measures to ensure and maintain the document’s confidentiality, or to take prompt and reasonable steps to rectify the error.”  In this case, the court found that the doctors had failed to take reasonable precautions to prevent inadvertent disclosure because there was no evidence that they reviewed the documents for privilege before or after they were copied by the copy service.  The court also found that the doctors had waited a year and a half after receiving notice that the letter had been disclosed before they filed their motion for a protective order.  The court found that the other factors also weighed in favor of Walton, and held that the privilege had been waived because the doctors had failed to take reasonable measures to ensure and maintain the letter’s confidentiality.

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