In a recent decision with significant ramifications for civil discovery in the state, the Supreme Court of Virginia articulated new standards governing waiver of privilege for inadvertently produced documents, and reemphasized the need for careful and thorough pre-production review of discovery materials. In Walton v. Mid-Atlantic Spine Specialists, P.C., 694 S.E.2d 545 (Va. 2010), plaintiff suffered a workplace injury and subsequently filed a medical malpractice action against her treating physician and his practice group. During discovery, a subpoena duces tecum was issued to the surgeon, who retained a third-party vendor to gather responsive documents. Among the documents ultimately produced was a letter from the treating surgeon to his attorney, in which he made several critical admissions which bolstered plaintiff’s case.
Defendant filed a motion for a protective order “against the use and/or distribution of [the] letter,” alleging that it is protected by the attorney-client privilege, and contained “retrospective critical analysis” of the case by defendant and his counsel. The lower court granted the protective order since disclosure of the privileged document was inadvertent.
However, the Supreme Court reversed and held the letter admissible. In so doing, the Court drew an important distinction between involuntary and inadvertent disclosure. Materials that are involuntarily produced – i.e., disclosure through criminal activity or bad faith, without the consent of the proponent of the privilege – remain privileged and therefore inadmissible. However, the Court held that waiver may occur where a privileged document is produced inadvertently if “the disclosing party failed to take reasonable measures to ensure and maintain the document’s confidentiality, or to take prompt and reasonable efforts to rectify the error.” Id. at 126. In making this determination, the Court applied a five-factor balancing analysis, in which the court considered (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) general considerations of fairness. Id. at 127 (adopting the test first enunciated in Lois Sportswear, 104 F.R.D. at 105).
Several factors were critical to the Court’s determination that the inadvertent production had resulted in waiver. The Court was particularly concerned by the haphazard manner in which litigation and non-litigation documents had been commingled, and noted that the letter had been marked neither confidential nor privileged. Second, the subpoena provided sufficient time for pre-production review of the produced documents; therefore, defense counsel should have been aware of the privileged document prior to production. Third, defense counsel did not act immediately upon realization that the privileged document had been produced, and instead waited more than a month to bring the issue to the Court’s attention. Finally, the Court found that the defendant had not undertaken sufficient efforts to supervise the third-party vendor in collecting responsive, non-privileged documents for production.
In light of this decision, it is more vital than ever that both parties to civil ligation vigilantly safeguard the various privileges preventing disclosure of potentially damaging documents. In order to avoid waiving important privileges, affirmative steps should be taken to carefully segregate privileged documents and to carefully review documents pre-production to ensure that privileged materials are not produced.
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