Update: Revisiting How Not to Use a New Technology to Share Privileged Information

In the February issue of the NYSBA Journal I wrote about a decision in Harleysville Ins. Co. v. Holding Funeral Home, Inc. In that decision, a United States Magistrate Judge found that use of a “internet-based electronic file sharing service” led to a waiver of the attorney-client privilege and the loss of work product protection.

After my article was submitted, the magistrate judge’s ruling was reversed by the United States district judge presiding over the action, Harleysville Ins. Co. v. Holding Funeral Home, Inc., No. 1cv00057 (W.D. Va. Oct. 2, 2017). After conducting an evidentiary hearing the district judge reversed the magistrate judge, finding that, “although there was an inadvertent disclosure, a balancing of the relevant factors compels the conclusion that the attorney-client privilege was not waived.” That balancing, among other things, also led the district judge to find that work product protection had not been waived. 

Note, however, that the district judge’s reversal does not call into question the lessons suggested in my article. Electronic communications between attorney and client are here to stay and will only become more pervasive. Attorneys should familiarize themselves with the means selected to communicate electronically to avoid possible waiver. Finally, reasonable steps should always be taken avoid inadvertent disclosure.

Ronald J. Hedges