It’s actually pretty easy to lose the attorney-client privilege protection when sharing documents online.
What follows is a step-by-step guide how to lose the attorney-client privilege in the cloud based on the facts of a case decided earlier this year (Harleysville Insurance Company v. Holding Funeral Home, Inc. et al).
- Senior investigator from insurance company uploads surveillance video footage of fire loss site onto the file sharing site, Box (Box File).
- Senior investigator then sends link to the Box File via email to the National Insurance Crime Bureau.
- The link to the Box File allows access to the file without requiring a passcode, so in effect, anyone that has access to the URL of the Box File location can access the file contents.
- Later the senior investigator (for some unexplainable reason) places the insurance company’s entire claim and investigation file (Claim File) into the same Box File that contains the video, so it can be accessed by the insurance company’s counsel.
- Defense counsel subpoena’s the files of the National Insurance Crime Bureau relating to the case.
- The National Insurance Crime Bureau sends electronic copies of all files received from the insurance company, including the email from the senior investigator containing the link to the Box File.
- Defense counsel, without informing anyone (not a good move), used the link to access and download the Box File, now containing the entire Claim File of the insurance company on the case.
- Insurance company receives thumb drive of documents requested from the defense counsel that by mistake contains privileged information of defendant. Insurance counsel alerts defense counsel (proper conduct), and upon request from defense counsel, insurance counsel destroys the defendant’s privileged information.
- Upon further review of the thumb drive, insurance counsel notices that the entire Claim File is also there as well! So, insurance counsel notifies defense counsel and requests that the copy of the Claims File in the defense counsel’s possession be destroyed.
- Insurance counsel seeks disqualify defense counsel for improper and unauthorized access to privileged information.
- Defense counsel argues that the insurance counsel waived all privilege to the Claim File by placing the information on a site that was publicly accessible.
Well, this case is a comedy of errors and missteps. However, the court concluded that by leaving the Claim File on an unprotected publicly available site the insurance company did not take reasonable precautions to prevent the inadvertent disclosure, thereby waiving the attorney-client privilege. Ouch!
But don’t think that the defense counsel got off scot-free for its unethical behavior in accessing the Claim File when it was clearly intended to be confidential. The court required the defense to pay all court costs associated with reaching this decision.
When sharing files with your counsel, and visa versa, don’t follow the steps above!
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