How to Handle Anonymously Received but Privileged Documents

June 18, 2015
Alex Hagan
eDiscovery

Originally published by Compelling Discovery.

What do you do if you receive documents from an anonymous source that contain privileged information from your adversary? That is the question Merits Incentives, LLC v. Dist. Ct., 127 Nev. Adv. Op. 63, 262 P.3d 720 (2011) addressed and it is still a topic that occasionally arises even for me.

The case arose “when opposing counsel reviewed confidential documents he received, unsolicited, from an anonymous source.” Id. at 721. A motion to disqualify counsel and his law firm was filed and denied. “[A]lthough there is no Nevada Rule of Professional Conduct that specifically governs an attorney’s actions under these facts, the attorney in this case fulfilled any ethical duties by giving prompt notification to opposing counsel, soon after his receipt of the disk from an unidentified source, through an NRCP 16.1 disclosure.” Id. For those outside Nevada, a 16.1 disclosure in state court is the equivalent of a Rule 26 disclosure in federal court.

In reviewing the case law supporting the motion to disqualify, “the courts found that the attorneys either played some part in obtaining an opposing party’s documents or were complicit in actions used to wrongfully obtain those documents.” Id. at 725. NRPC 4.4(a) and 8.4(d) also require “that the attorney must take some type of affirmative action, either by employing a method of obtaining evidence or engaging in certain conduct, to violate either of those rules.” Id.

[W]e now adopt a notification requirement to apply in situations where an attorney receives documents anonymously or from a third party unrelated to the litigation. Thus, an attorney who receives documents regarding a case from an anonymous source must promptly notify opposing counsel, or risk being in violation of his or her ethical duties and/or being disqualified as counsel. Notification must adequately put opposing counsel on notice that the documents were not received in the normal course of discovery and describe, with particularity, the facts and circumstances that explain how the documents or evidence came into counsel’s or his or her client’s possession. Id.

Merits Incentives then offered guidance as to what factors a district court may consider upon a motion to disqualify opposing counsel in similar situations. It cited a Texas decision where the identity of the person disclosing the information was known. “Without doubt, there are situations where a lawyer who has been privy to privileged information improperly obtained from the other side must be disqualified, even though the lawyer was not involved in obtaining the information.” In re Meador, 968 S.W.2d 346, 351 (Tex. 1998). However, “it is impossible to articulate a bright-line standard for disqualification where a lawyer, through no wrongdoing of his or her own, receives an opponent’s privileged materials.” Id.

Merits Incentives adopted this logic and the six, non-exhaustive factors Texas had described to evaluate if disqualification is required.

Whether the attorney knew or should have known that the material was privileged;
the promptness with which the attorney notifies the opposing side that he or she has received its privileged information;
the extent to which the attorney reviews and digests the privileged information;
the significance of the privileged information; i.e., the extent to which its disclosure may prejudice the movant’s claim or defense, and the extent to which return of the documents will mitigate that prejudice;
the extent to which movant may be at fault for the unauthorized disclosure; and
the extent to which the nonmovant will suffer prejudice from the disqualification of his or her attorney.

Applying these factors, disqualification was not warranted both due to prompt disclosure and lack of evidence indicating attorney complicity in obtaining the documents. If you receive anonymous but privileged documents, it seems this analysis may come into play.