Thursday, January 4, 2024

Inadvertent Disclosure Waived Privilege

The Tennessee Court of Appeals affirmed a trial court finding that the inadvertent disclosure of an email waived attorney client privilege in a contract/ covenant not to compete matter

Defense counsel also inadvertently included an email from [his client] Patrick, dated March 22, 2020, in which Patrick informed defense counsel of the actions he and Carlos had taken since leaving Masquerade, specifically the establishment of a new website independent of Masquerade. The brief, along with the attached email, were served on counsel and filed with the court twice.

Patrick alerted defense counsel to the error on July 30, 2020, and defense counsel orally moved to exclude the email the next day on July 31. Defendants then filed a written motion in limine to exclude the email on August 4, requesting an order preventing Plaintiff from “utilizing, relying on or in any way utilizing that certain email sent from Patrick Horne” to defense counsel. Defendants argued that the email was a disclosure from a client to his attorney that was inadvertently attached to two separate briefs, neither of which involved the subject matter of the email. Defendants later filed a motion to strike the inadvertently included email from the record.

As Samuel Jackson might say, allow plaintiffs to retort

Plaintiff responded in opposition to the motion in limine, arguing that the disclosure of the email waived the attorney-client privilege inherent in such a communication. Plaintiff argued that (1) Defendants offered no evidence of any precautions taken to prevent the disclosure of such a communication; (2) that the email was served upon opposing counsel twice and filed with the court twice; (3) that Defendants moved to exclude the email 36 days after the initial disclosure; and (4) that it has relied upon the email and spent countless hours examining the evidence and preparing for the hearing. Plaintiff explained that Defendants were even questioned about the email in depositions without objection and that the email had also been discussed with the court in telephone hearings without objection prior to July 31.


On August 17, 2020, Plaintiff filed a motion to disqualify defense counsel and for discovery sanctions, arguing that counsel had repeatedly violated the Tennessee Rules of Professional Conduct by “offering, using, and affirming” the validity of evidence he knew was false as evidenced by the contents of the aforementioned email. Plaintiff asserted that the facts contained in the email directly contradicted Defendants’ responses to requests for admission; deposition and court testimony provided by Carlos; and deposition testimony provided by Patrick.

The court here

we find no abuse of discretion in the trial court’s ultimate holding that the inadvertent production of the email operated as a waiver of the attorney-client privilege and that the email is now admissible.

But the waiver extends no further

We likewise decline the opportunity to provide such a determination in this case when the record cannot be read to support a finding that Defendants voluntarily or selectively disclosed otherwise protected information. Rather, defense counsel inadvertently disclosed one crucial communication that counsel was then forced to defend in response to a barrage of allegations filed by Plaintiff. Defense counsel could not defend against such allegations without citing the email that had already been read by all parties. Any citation to the inadvertently disclosed communication was also made in accordance with Rule 1.6(b)(5) of the Tennessee Rules of Professional Conduct.  With all of the above considerations in mind, we find no abuse of discretion in the trial court’s limiting the scope of the waiver to the production of the email.

(Mike Frisch)

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