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When Does File Sharing Waive Privilege?

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It’s been almost a year since most of the legal community first heard of Harleysville Insurance Company v. Holding Funeral Home, Inc., et al.,2017 WL 4368617 (W.D. Va. 2017). The effects of this case changed the way the legal world looked at file sharing and e-discovery. However, if you didn’t follow the case long enough, you may have drawn some conclusions that don’t match up with legal ethics.

Does File Sharing Waive Privilege in E-Discovery?

In Harleysville v. Holding, an insurance company took a funeral home to court over a fire damage claim. During discovery, an investigator for the insurance company uploaded surveillance video of the fire to Box, Inc—an online file sharing service. That investigator then sent a link leading to that video to an agent at the National Insurance Crime Bureau (NICB). The investigator marked the information “privileged and confidential.”

Months later, the defendant—Holding Funeral Home—subpoenaed the entire case file from the NICB, including the privileged video. After finding the video, defense counsel consulted the Virginia State Bar ethics hotline and concluded that the plaintiff had waived attorney-client and work-product privilege. Plaintiff counsel moved to implement an order requiring the defense to destroy the claim file with the privileged information and requested that defense counsel be removed from the case.

The magistrate judge denied the order, saying that the plaintiff had waived privilege by posting the video on a public file-sharing site where it was viewable by the public. He said no efforts had been made to protect the information, so the evidence was free to be used by the defense. This sent shockwaves through the legal community, and many outlets reported on the decision, but many of those sources didn’t track the subsequent developments in this case.

Plaintiff’s counsel appealed the magistrate judge’s ruling and took the order to district court. There, Judge James Jones reversed the magistrate’s ruling. The judge said in his opinion that the plaintiff intended to make the file available only to plaintiff’s counsel, not the defendant or NICB. Secondly, the judge says the plaintiff had attempted to protect the video because though it was stored on a public site, the only way to access it was through a link. These details and a few others convinced the judge that the plaintiff’s order to destroy the claim file containing the privilege information should be upheld. The judge did not dismiss defense counsel from the case, however, he did say that the defense should have notified opposing counsel that they had downloaded privileged material.

This case highlights just how complicated sharing evidence can be, and how the tiniest mistake can cost a lawsuit months on appeal. Keeping track of evidence in an e-discovery system not only helps secure law firms against this hazard, it has other advantages that can keep your client’s case on track. To learn more about these advantages, keep following the IT professionals at Exactify.IT. We make technology work better for law firms when case get increasingly complicated.

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Posted In: Technology and Legal Ethics

Posted On: April 28, 2018

Posted By: Exactify.IT

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