Sitterson v. Evergreen School Dist., 2008 WL 4981630 (Nov. 25, 2008)
In this case, plaintiff brought suit against the defendant, a school district (“the District”), for breach of contract and quantum meruit following termination of his contract as a financial advisor. About one month after filing suit, plaintiff served his requests for production. In response, the District produced approximately 439 pages of documents, including four confidential letters between the District and its attorney regarding the litigation. Three years later and ten days before trial, plaintiff sent copies of his proposed exhibits to the District, including the four confidential letters. The District objected to their admission on the first day of trial, arguing that they were protected by attorney-client privilege. In response to a question from the trial court regarding his role in the production of the letters, the attorney for the District responded that the letters did “go through” him and he stated, “…I guess I just wasn’t thorough enough.” The trial court denied the District’s motion to exclude. Eventually, the jury awarded plaintiff $151,000.
On appeal, the District argued that the trial court erred in admitting the letters because the District had not waived its attorney-client privilege by its inadvertent production. The District urged the court to hold that inadvertent production would never result in waiver. The plaintiff advocated a more balanced approach.
The court first addressed the question of who may waive the attorney-client privilege and determined that “an attorney can waive the privilege if he or she is authorized to speak and act for the client on particular matters and discloses privileged material within the scope of that authority.” The court went on to note that, “[a]nswering discovery requests is generally a matter in which the attorney has the authority to speak and act for the client.”
Turning to its substantive discussion of waiver, the court first acknowledged the traditional approach when a privileged document is voluntarily disclosed. In that case, all disclosures made to the opposing party “in the course of taking adverse steps in litigation are ‘receivable as being made under an implied waiver of privilege.’” This resulted in waiver even where that was not the intended result. However, the court went on to point out that many courts have recently considered a more flexible approach in recognition of the enormous volume of documents implicated by modern litigation and the commensurate burden on attorneys to prevent inadvertent disclosure.
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