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Legal Memorandum: Attorney-Client Privilege for Voluntary Disclosures

Issue: Can a party claim attorney-client privilege with respect to voluntarily disclosed e-mails?

Area of Law: Litigation & Procedure
Keywords: Attorney-client privilege; Voluntary disclosure; Voluntarily disclosed e-mails
Jurisdiction: Federal, Minnesota
Cited Cases: 841 F.2d 230; 86 F.3d 1472
Cited Statutes: Fed. R. Civ. P. 37(b)(2)(A), R. 37(b)(2)(A)(ii)
Date: 09/01/2008

A magistrate judge has broad discretion to supervise the discovery matters before him.  McGowan v. Gen. Dynamics Corp., 784 F.2d 361, 363 (8th Cir. 1986).  “Voluntary disclosure is inconsistent with the confidential attorney-client relationship and waives the privilege.”  See In re Grand Jury Proceedings Subpoena to Testify to: Wine, 841 F.2d 230, 234 (8th Cir. 1988), cited in United States v. Rosenblum, Crim. No. 07-294 (JRT/FLN) (D. Minn. Mar. 3, 2008) (Slip Copy).  In the Rosenblum case, the court found that defense counsel waived the attorney-client privilege when, like in this case, it voluntarily disclosed unredacted documents to the prosecution in a privilege log.  See also United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998) (also stating that voluntary disclosure of attorney-client communications expressly waives the privilege).

One potential option is the application of the “Hydraflow” test adopted by the court in Starway v. Independent School District No. 625, 187 F.R.D. 595, 596-97 (D. Minn. 1999).  Under that test, in determining whether a disclosure of ostensibly privileged information is inadvertent (which does not result in waiver of the privilege) or voluntary (which does), the factors to be considered are (1) the reasonableness of the precautions taken to prevent inadvertent disclosure, in light of the extent of document production; (2) the number of “inadvertent” disclosures; (3) the extent of the disclosures; (4) the promptness of measures taken to remedy the problem; and (5) whether justice would be served by relieving the disclosing party of […]

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