Wednesday, December 23, 2009

Reversal Of Order Denying Protective Order Over Privileged Information "Interests Of Justice Require" It

In Nova Southeastern University, Inc. v. Jacobson (4D09-683), the Fourth District granted Nova's Petition for Certiorari and quashed the trial court's order requiring disclosure of a letter protected by the attorney client privilege.  The interests of justice required counsel for the plaintiff below to disclose the fact that they had the letter.  The court stated:
Jacobson, was an Associate Director at the University School Middle School of Nova....Jacobson was being deposed on February 13, 2008, when she testified that in June 2005 she was at the fax machine at the middle school receiving some papers on an insurance claim for her son. Mixed in with some insurance company papers was a letter from Nova’s law firm to the head master of the school, the human resources department and the director of the middle school. She read the letter, which stated that the university “did not have enough performance issues to fire me, and that it would have to be a business decision whether I was going to remain an employee of NSU.” Counsel for Nova said at the deposition that he was recording his objection to the letter as attorney-client privilege, noting that “it was obviously communicated accidentally.” No letter was produced at the time of the deposition.
***
Nova moved for a protective order in May 2008 to prevent Jacobson from referring to the letter, because it was protected by attorney-client privilege. At the time of the filing of the motion, Nova did not know that Jacobson had retained a copy of it....At the hearing, Nova filed affidavits from each of the persons to whom the letter was sent, indicating that they did not intend for third persons to see the communication. Further underscoring the letter’s confidentiality, counsel produced a cover sheet which had accompanied the faxed letter, which stated that the attached communication was protected by attorney-client privilege.
***
As we said in BNP Paribas v. Wynne, 967 So. 2d 1065, 1067 (Fla. 4th DCA 2007), “[t]h e attorney-client privilege is the oldest confidential communication at common law and . . . is ‘traditionally deemed worthy of maximum legal protection.’”...The privilege belongs to the client, see Neu v. Miami Herald Pub. Co., 462 So. 2d 821, 825 (Fla. 1985), and may be claimed by the client or the lawyer on behalf of the client.
***
Closer to these facts are those cases involving overheard conversations, where the client knew or should have known that the conversation was overheard by a third person....In such cases, the courts have held that where the communication is made in the presence of others, it does not evince an intent to keep the conversation confidential, and the privilege is lost....Nevertheless, the fact determination in the overheard conversation cases is similar to the first step of the Abamar/McGee inquiry regarding the reasonableness of the precautions to prevent inadvertent disclosure. Therefore, despite the factual difference, we apply the relevant circumstances test.
***
Where the party who inadvertently produced the documents objects or demands return of the documents as soon as the disclosure is discovered, the party has not unduly delayed seeking measures to rectify the inadvertent disclosure.....These cases show that it is the assertion of the privilege at the earliest time through objection or motion which is the important measure in evaluating efforts to rectify the disclosure. It is not the delay in securing hearing time. In failing to recognize that the timely assertion of an objection constituted an appropriate measure to rectify the inadvertent disclosure, the court departed from the essential requirements of law. Furthermore, Nova’s trial counsel did not know that Jacobson had a copy of the letter at the time the depositions proceeded. Nova’s attorney could not have moved to exclude what h e did not know was in possession of his opponent.
***
The overriding interests of justice support returning the letter to Nova, if it is determined that the attorney-client privilege was not waived by the method of its delivery by fax. Jacobson’s attorney clearly had to know that the letter was intended to be a confidential communication in that it provided legal analysis regarding the Nova/Jacobson employment relationship. The Rules of Professional Responsibility require that he notify the other attorney of this inadvertent disclosure. See Fla. R. Prof. Conduct 4-4.4(b) (“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”). Instead of following the rule, this attorney held onto the letter for years. The interests of justice require that the Rules of Professional Responsibility be honored. Because the trial court departed from the essential requirements of law in evaluating the relevance test factors for waiver of attorney-client privilege based upon inadvertent disclosure, we remand for the trial court to conduct a new hearing on the issue.

0 comments:

Post a Comment