Article by Holly Olarczuk-Smith, Esq.
Even with appropriate safeguards in place during discovery, there exists the possibility that even the most diligent of attorneys may inadvertently produce an attorney-client communication or protected work product to an adversary. Knowing what to do if you have made an unintentional disclosure of privileged information or if you have received such a disclosure is critical. This article discusses what steps an attorney can take to properly claw-back inadvertently disclosed privileged information.
Under Ohio law, an inadvertent production does not waive the privilege and instead, permits a “claw-back” of the document. Ohio Civ.R. 26(B)(8)(b) contains a “claw-back” provision that provides a mechanism for a party to retrieve inadvertently produced documents from an opponent. When a producing party realizes that there has been an inadvertent disclosure, the producing party should notify any receiving party and state the basis for the assertion of privilege or protection. The notification should be made promptly and in writing after learning of the unintentional disclosure and should also remind the receiving party of their unconditional obligation to “promptly return, sequester, or destroy the specified information and any copies within the party’s possession, custody or control” and they “may not use or disclose” the information in any way until the disputed privilege issue is resolved:
If information is produced in discovery that is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a receiving party must promptly return, sequester, or destroy the specified information and any copies within the party’s possession, custody or control. A party may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim of privilege or of protection as trial preparation material. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Ohio Civ.R. 26(B)(8)(b). (Emphasis added.)
If the receiving party is uncooperative with the claw-back process, the producing party asserting the claim of privilege may file a motion for protective order under seal pursuant to Civ.R. 26(C). The rule requires that “[b]efore any person moves for a protective order . . . that person shall make a reasonable effort to resolve the matter through discussion with the attorney or unrepresented party seeking discovery. A motion for a protective order shall be accompanied by a statement reciting the effort made to resolve the matter in accordance with this paragraph.” See Civ.R. 26(C). (Emphasis added.) It is, therefore, critical to discuss those efforts in the motion.
Relatedly, Ohio Evid.R 502(B) governs the effect of an inadvertent disclosure of privileged material.[1] The rule sets forth three elements to protect the inadvertent disclosure of “communications or other information covered by the attorney-client privilege or work-product protection” (see Ohio Evid.R. 502) by providing “a predictable and uniform set of standards under which parties can determine the consequences of disclosure.” See 2022 Staff Notes to Ohio Evid.R. 502. The stated elements under Evid.R. 502(B) provides that the inadvertent disclosure “does not operate as a waiver in any proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Civ. R. 26(B)(8)(b).” The factors relevant to applying the rule (none of which is dispositive) include “[1] the reasonableness of precautions taken to prevent disclosure, [2] the number of disclosures, [3] the extent of the disclosures, [4] the promptness of measures taken to remedy the disclosures, and [5] the overriding interests of justice.” Am. Coal Sales Co. v. Nova Scotia Power Inc., S.D.Ohio No. 2:06-CV-94, 2009 WL 467576, *17, citing Nilavar v. Mercy Health Systems–Western Ohio, 2004 WL 5345311, *3 (S.D.Ohio March 22, 2004) (noting that “Ohio and most federal courts use a five factor balancing test, as described in Nilavar”to determine whether an inadvertent disclosure waives privilege); see also 1 Baldwin’s Oh. Prac. Evid. Rule 502 (4th ed.), Article V, Comment 502.3 (discussing the same five-factor Nilavar test). Each of these factors should be discussed in the motion for protective order and supported with evidentiary materials, such as an affidavit.
Another critical point to consider is what type of relief to request from the court. Various forms of relief can be sought such as the return of the privileged document, confirmation that all copies of the privileged document, both in electronic and hardcopy formats, have been deleted and destroyed, and/or affirmation that reasonable steps have been taken by the receiving party to retrieve the privileged document from others. The relief sought should be tailored to the particular circumstances of the case.
The key takeaway is that claw-back provision of Ohio Civ.R. 26(B)(8)(b) must be triggered promptly and effectively based on the particular circumstances of your case. If the claw-back provision is promptly and effectively implemented, you can potentially reverse the prejudicial impact of the unintentional disclosure and avoid waiving the privilege or protection.
[1] Ohio Evid.R. 502 “is modeled closely on Fed.R.Evid. 502 adopted by Congress in 2008[.]” See 2022 Staff Notes to Ohio Evid.R. 502. Ohio Evid.R. 502(F)(1) defines “attorney-client privilege” as “the protection that applicable law provides for confidential attorney-client communications. Ohio Evid.R. 502(F)(2) defines “work-product protection” as “the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.”