Attorney Client Privilege: Disclosure within Evidence

Question

Florida Statues Provides

A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person's predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.  This section is not applicable when the disclosure is itself a privileged communication.

https://codes.findlaw.com/fl/title-vii-evidence/fl-st-sect-90-507.html

Context

A judge orders the defendant to provide evidence in Florida Nonbinding arbitration. The Defendant's administrative-contractor has provided Defense counsel with several emails as evidence. Defense attorneys submit pdf evidence: partially redacted email communication to the Arbiter and plaintiff. Said email starts with the partially redacted message, followed by the plaintiff's email. Evidence was published to a file sharing website for plaintiffs, to fulfill Florida procedural requirements.

Prima facie review of the redaction includes some clearly visible sentences. Stakeholders are able to deduce the sender, at least one named recipient, and the nature of the request: the Defendant's administrative contractor requested counsel from a third-attorney, seeking advice as to how to proceed with undertaking a contested action, under the guise of pretextual claims set forth by the administrative-contractor. The sender is not an employee of the defendent, however, they are contracted to execute the Defendent's decisions.

Despite the redaction failures, counsel attempted to redact the contractor's message. Plaintiff's attorney argued that based on what is visible, it is necessary to see the remainder of the message as "best evidence". Defense Counsel has vigorously asserted that the judge should not consider any of the information that is intended to be redacted under attorney-client privilege. The judge asked the defense if he should consider what is clearly already visible.

Analysis of the evidence clearly revealed the fully unredacted message. Said analysis includes: Plaintiffs were able to "cut and paste" the partially redacted email to a basic text editor to reveal the complete message, without redactions. The message is an attempt to request counsel as to how to undertake the contested action and provides false information to counsel. The message is damaging to the Defense's case as the contractor admits plaintiff's claim.

The unredacted message:

1. provides a pretextual basis to the third-attorney, for which counsel provide an opinion-letter regarding why the defendant is able to undertake the its disputed action. The opinion letter is the foundation which the Defendent relies upon for the Business-Judgement rule.

2. The unredacted message shows that Defendent's contractor admitting the absence of the defense claimed by Defendents.

QUESTIONS

I would be interested in hearing arguments for AND against admitting the plaintiff's version of the unredacted version of evidence and why you think the judge will / will not admit the unredacted version.

I would like to understand (preferably with Florida case law examples): Is the disclosure of the evidence "as-is and subject to plaintiff "cut and paste" analysis?

Answer 1

The evidence would (normally) be inadmissible

australia

The authority is Reduction Analyst Group Pty Ltd & Ors v Armstrong Strategic Management & Ors (2013) 303 ALR 199.

The High Court concluded that where a privileged document has been inadvertently produced during a court-ordered discovery, the court should ordinarily permit that mistake to be corrected and order the document’s return. However, relief may not be granted if (i) a party fails to act promptly or (ii) the party to whom the documents have been disclosed has been placed in a position, due to the disclosure, where it would be unfair to order the return of the documents.

Their Honours concluded that to establish an intention to claim privilege, it was sufficient to prove that the ERA Parties intended to claim privilege and that the reviewers were carrying out the ERA Parties’ instructions.

In your case, the defendant has clearly indicated an intention to claim privilege by attempting to redact parts of the documents. That the redaction was ineffective was clearly a mistake. Unless the exemption quoted above applies, the court should order the return of the documents and should not take them into evidence.

Further, the solicitor who received the documents and reasonably concluded they were received in error was ethically bound to immediately raise this with the sender. This would have led to their return without involving the court. Forensically examining the documents, if done by the plaintiffs lawyers is nudging professional misconduct and censure.