Massachusetts State House.
Boston Bar Journal

The Business Litigation Session Orders the Return of an Inadvertently Disclosed Draft Letter

August 04, 2022
| Summer 2022 Vol. 66 #3

By: Marc C. Laredo and Matthew A. Kane, Laredo & Smith, LLP

One of the things that can cause a lawyer, especially a litigator, to lose sleep (and there are lots of them!) is the fear of prejudicing their own client by inadvertently disclosing a privileged document to the opposing side. See, e.g., Amgen Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 288 (D. Mass. 2000) (holding that inadvertent disclosure of privileged documents, “the misstep feared by all litigators,” effected waiver of attorney-client privilege). A recent ruling by Superior Court Justice Kenneth W. Salinger may allow lawyers to rest a little easier.

In Van Vuuren v. Lowenstein Sandler LLP, 2184CV01663-BLS-2 (Mass. Super. Ct. May 24, 2022) (“Van Vuuren”), a case currently pending in the Business Litigation Session of the Superior Court, the defendants served a motion to dismiss on statute of limitations grounds, contending that the plaintiff’s claims accrued when he received a letter from one of the defendant attorneys terminating his employment.  “Counsel attached what they thought was an unsigned copy of that letter to the memorandum supporting the motion to dismiss.” Van Vuuren,  slip op. at 1. Alas, it was the wrong copy.  Instead of being the unsigned copy of the final version of the letter, it was an unsigned copy of an earlier draft that “differed in potentially material ways from the final letter.”  Id.  Defendants’ counsel discovered their error after receiving the plaintiff’s opposition to the motion to dismiss, at which point defendants’ counsel promptly notified plaintiff’s counsel that the disclosure had been inadvertent and requested the return of the draft letter.  Plaintiff’s counsel refused.

In a Memorandum and Order on the defendants’ ensuing motion to compel the return of the draft letter, the Court addressed two important questions: (a) whether the attorney-client privilege protected the inadvertently disclosed draft; and (b) whether the plaintiff should return the draft to the defendants.  Id.  at 1-10.  The Court answered both questions affirmatively.

First, the Court held that the draft was a privileged communication even though the final version of the letter had been sent to plaintiff’s counsel prior to the commencement of litigation.  Relying on a series of decisions of the Supreme Judicial Court (“SJC”) and  a law review article by the late Professor Paul R. Rice, the Court outlined the history and parameters of attorney-client privilege law in Massachusetts, including the following:  Attorney General v. Facebook, Inc., 487 Mass. 109, 121 (2021); RFF Family Partnership, LP v. Burns & Levinson, LLP, 465 Mass. 702, 707-08 (2013); McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 190 (2012); Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 305 (2009); Paul R. Rice, Attorney-Client Privilege: Continuing Confusion About Attorney Communications, Drafts, Pre-existing  Documents, and the Source of the Facts Communicated, 48 Am. Univ. L. Rev. 967, 1001 (June 1999) (Professor Rice’s treatise, P.R. Rice, Attorney-Client Privilege in the United States (2d ed. 1999), was favorably quoted by the SJC in McCarthy, 463 Mass. at 190 n.20 and in Comcast Corp., 453 Mass. at 305).  The Van Vuuren court succinctly explained that the privilege applied to the communications between an attorney and client, emphasized that this was so even if the information contained in the communications was not itself confidential, and concluded that the privilege thus covered drafts of the final letter.

Second, the court ruled that counsel’s inadvertent disclosure did not result in a waiver of the attorney-client privilege.  Relying on the SJC’s ruling in In the Matter of Reorganization of Electric Mut. Liab. Ins. Co. Ltd, 425 Mass. 419, 422-23 (1997), and the factors articulated in Mass. R. Civ. P. 26(b)(5), the Court held that “[a] party should be allowed to recover a privileged document if the ‘disclosure was inadvertent,’ ‘the holder of the privilege … took reasonable steps to prevent disclosure,’ and ‘the holder promptly took reasonable steps to rectify the error.’”  Van Vuuren, slip op. at 7. The court also found that the client seeking to enforce the privilege shared a “common legal interest” with the co-defendant’s personal attorney with whom the draft had been shared, and thus that disclosure “did not waive the privilege.” Id. at 8-9.

In our view, the Court reached the right result on both issues.  Many lawyers have no doubt assumed that earlier drafts shared with clients remain privileged even though the final draft is sent to an opposing party.  And rightly so, because the fundamental purpose of the attorney-client privilege is to encourage the free, candid exchange of information between attorney and client for the purpose of providing legal advice.  Involving clients in the drafting process is precisely that type of conduct.  Likewise, Van Vuuren wisely recognized that safeguards are necessary to protect the attorney-client privilege when a draft of an otherwise privileged document  is inadvertently revealed, because in such circumstances it would be patently unfair to penalize the client for the lawyer’s mistake.  Thus, concluded Van Vuuren, if the lawyer has taken reasonable steps to preserve the attorney-client privilege, the disclosure was the result of a mistake, and the lawyer took reasonable prompt steps to fix the error, then it is only fair that the attorney-client privilege should be preserved, and the inadvertently disclosed draft returned. Lesson for practitioners: Be diligent, but rest easier if you have been!

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Matthew Kane, a partner at Laredo & Smith, LLP, is a business and commercial litigator representing small and mid-size businesses, banks and financial institutions, and individuals in an array of litigation matters, including commercial contracts, leasing, real estate, banking, employment, and business torts. He is an active member of the Boston Bar Association, a frequent speaker on business litigation topics, and looks forward to joining the BBA’s Business and Commercial Litigation Committee this fall.

Marc C. Laredo, a founding partner of Laredo & Smith, LLP, is a business litigator and counselor.  He represents businesses in an array of litigation matters, including shareholder disputes, commercial contracts, business torts, employment cases and government investigations.  He also proactively advises closely-held businesses on entity formation, employment matters, contracts, crisis situations, and exit strategies. Marc is a member of the BBA’s Law Firm Leadership Forum and the former co-chair of the Massachusetts Practice and Procedures Committee of the Litigation Section Council.