Inadvertent Disclosures in Civil Proceedings: How to Avoid Unintentional Waiver of Attorney-Client Privilege

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The unintentional disclosure of privileged or confidential information in discovery responses is an ever-present fear for civil litigators who understand the damage that it can cause, not only to their client’s case but, as in the case of the recent Alex Jones trial in Texas, to a law firm’s reputation.

In this article, we will look at Texas law on inadvertent disclosure and how our state differs from many other states when it comes to the disclosing attorney’s responsibilities, including:

  • What the Texas Rules of Evidence, Rules of Civil Procedure, and appellate opinions say about inadvertent disclosures and unintentional waiver of privilege,
  • When complying with the court rules may not be enough to avoid unintentional waiver of privilege, and
  • Steps attorneys should take to avoid inadvertent disclosures in discovery or communications with opposing counsel.

Alex Jones’ Trial: A Civil Attorney’s Worst Nightmare Come True

During the damages phase of Alex Jones’ Texas trial last month, it was revealed – during the plaintiffs’ attorney’s cross-examination of Jones – that Jones’ attorney had 1) inadvertently produced a large number of confidential files to the plaintiffs and 2) failed to take any steps to reclaim the files or preserve attorney-client privilege related to the documents.

Those documents reportedly included privileged attorney-client communications, confidential health records of third parties, and communications that could be relevant to the investigation of the January 6 commission

The plaintiff’s attorney reportedly notified Jones’ attorney of the disclosures, and Jones’ attorney replied stating the files were “sent in error,” asked the plaintiff’s attorney to “please disregard the link,” and stated that he would “work on preparing a new one.”

Is that enough to correct the attorney’s mistake?

According to media reports, Jones’ attorney did not prepare a new link, identify the material, amend the discovery response, or assert any privileges that would apply within the ten-day time limit provided in the Texas Rules of Civil Procedure.

The plaintiff’s attorney then proceeded to use the inadvertently disclosed materials to impeach Jones on the witness stand – in a cross-examination that was immediately widely distributed in news media and Youtube videos – and use the information to demonstrate to the court and jury that Jones had been less than forthcoming in his previous responses.

The effect of the inadvertent disclosure may be much wider-ranging than this one trial (which resulted in an award of over $45 million in compensatory and punitive damages). If Jones’ attorneys unintentionally waived attorney-client privilege as to the documents, they may be used in future civil cases against Jones or even criminal proceedings…

What Does Texas Law Say About Inadvertent Disclosures of Confidential Material?

In many states, the rules favor protecting the confidentiality of the disclosing party – some states even require the receiving attorney to stop reading the material immediately upon realizing the nature of the documents.

Texas, however, is less forgiving.

Under Texas Rule of Civil Procedure 193.3(d), the producing party must, within ten days after the producing party realizes what they have done or sooner if ordered by the court:

  • Amend their discovery response,
  • Identify the materials produced that may be subject to privilege, and
  • Identify the privileges that are being asserted for each document.

If the producing party does not comply with Rule 193.3(d), any privileges are likely waived, and, unless there is another rule that makes the information inadmissible, the material can then be used in court by the receiving party (or shared with law enforcement).

If the producing party does comply with Rule 193.3(d), the receiving party “must promptly return the specified material or information and any copies pending any ruling by the court denying the privilege.”

Even when the producing party complies with Rule 193.3 they may not be in the clear – depending on the circumstances, the information may still be used in cross-examination of character witnesses, and the court may still find that privilege is waived when the producing party did not take appropriate steps to prevent involuntary disclosures in the first place…

Texas Rules of Evidence

As a starting point, Rule 511(b)(2) of the Texas Rules of Evidence (waiver by involuntary disclosure) states that “an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).”

Rule 511(a), however, clarifies that the privilege is still waived if the producing party “calls a person to whom privileged communications have been made to testify as to the person’s character or character trait insofar as such communications are relevant to such character or character trait.”

In short, the receiving party can’t “unsee” the privileged disclosures, and can still use the information, when relevant, to impeach any character witnesses called by the producing party at trial.

Texas Appellate Opinions Regarding Inadvertent Disclosures of Privileged Material

The analysis doesn’t necessarily end with the Texas Rules of Civil Procedure and the Texas Rules of Evidence, though.

The Texas Supreme Court has held that, where the disclosing party did not take steps to prevent the inadvertent disclosure of privileged materials and did not realize they had disclosed the information until eleven months later, privilege was waived even when the disclosing party complied with the rules.

In Granada Corp., et al. v. The Honorable First Court of Appeals, 844 S.W.2d 223, (Tex. 1992), the Court found that “[T]he producing party has the burden of justifying preservation of privilege by showing that the circumstances demonstrate the involuntariness of the disclosure,” and privilege was waived where:

  • The documents were not segregated during the law firm’s initial review of the discovery materials,
  • The documents were not removed by the attorney who reviewed the documents before production, and
  • The confidential documents weren’t noticed by the producing attorney until eleven months after production when the documents were marked as exhibits in a deposition.

Avoiding Inadvertent Disclosures and Unintentional Waivers of Privilege Under Texas Law

When it is discovered that confidential materials have been unintentionally provided to opposing counsel, the producing law firm should immediately amend their discovery response, identify the material produced and the privileges claimed, request the return of the documents, and, if necessary, file a motion requesting the court’s assistance.

Attorneys can avoid this kind of nightmare scenario, however, by taking careful and thorough steps to prevent unintentional disclosures. For example, sending attorneys should:

  • Review the documents multiple times to ensure that no privileged material is included,
  • Double-check any copies that are returned to ensure no privileged documents slipped through,
  • Always keep privileged documents segregated,
  • Use colored Bates labels to identify privileged documents in the office files or copy privileged documents on colored paper only so they can be easily identified,
  • Avoid using “reply all” in emails,
  • Avoid using “speed dial” when sending faxes,
  • Double-check and carefully ensure that all parties are disconnected at the end of conference calls,
  • Eliminate metadata with scrubbing programs when sending electronic discovery, and
  • When appropriate, avoid sending electronic documents altogether.

Law firms should ensure that they have clear policies and procedures that apply to all outgoing documents and that attorneys, paralegals, and support staff strictly follow the firm’s policy, and, if an inadvertent disclosure happens despite all precautions, immediately comply with Texas Rule of Civil Procedure 193.3(d) and file any motions that are necessary to obtain the court’s assistance in securing the return of the documents and the preservation of any applicable privileges.

Please feel free to contact one of our Murray Lobb attorneys to obtain our assistance in civil litigation. We also remain available to help you with all your general corporate, construction law, business, and estate planning needs.