In Hur v. Lloyd & Williams, LLC, No. 38363-6-III (Wash. Ct. App. Jan. 31, 2023), the Court of Appeals of Washington, Division 3 affirmed the trial court’s ruling of disqualification sanctions denied for plaintiff’s counsel, who received privileged information in the metadata of the defendant’s production and failed to take corrective action once the privileged information was identified.
In this contract dispute, defendant’s lawyer, George Ahrend, sent more than 1,000 pages of e-mails to plaintiff’s lawyer, Heidi Urness. The discovery was sent electronically and was accompanied by a notice stating privileged information had been redacted. Mr. Ahrend later explained he redacted the purportedly privileged e-mails by blacking out the substantive content, leaving the header information (i.e., date, sender, recipient, and subject) visible in lieu of a privilege log.
Plaintiff’s lawyer moved for partial summary judgment and included two exhibits taken from defendant’s discovery materials which were screenshots displaying the results of keyword searches: sentence fragments containing the search terms “Maggie” and “rent,” accompanied by a denotation of how many “matches” had been found in the searched documents and a visual of e-mail headers followed by completely blacked out text.
Defense counsel reviewed plaintiff’s summary judgment submissions and recognized the e-mail fragments as content he had intended to redact. Upon further investigation, defense counsel discovered his attempt at redaction had been only partially successful. Although portions of the discovery had been blacked out, the metadata associated with the redacted portions had not been removed from the documents produced. As a result, the content of the blacked-out text was discoverable upon performing a word search of the document.
Defendant moved to disqualify plaintiff’s counsel from the case, alleging her receipt and retention of privileged materials violated ethical and discovery court rules. Plaintiff’s counsel denied any wrongdoing, providing various explanations for her conduct, including assertions that she did not understand metadata and that she had received at least some of the information from a third party. She also argued the e-mails were not privileged and that they revealed defendant had engaged in its own ethical violations by withholding information and making misstatements to the court. She also claimed she had not tried to uncover privileged information but had simply performed a word search of the discovery materials.
The superior court denied defendant’s motion to disqualify plaintiff’s counsel. The court opined that some of plaintiff counsel’s explanations were suspicious but credited her assertion that she did not knowingly search through privileged material, also acknowledging that disqualification is an extraordinary remedy, imposed only in extremely rare circumstances. The court fashioned alternate remedies, ordering plaintiff’s counsel to destroy the files, promised to banish the e-mail excerpts from the court’s decision-making, and instructed the parties to not mention the excerpts again. Defendant sought discretionary review of the superior court’s order of disqualification sanctions denied for plaintiff’s counsel.
Appellate Court Ruling
In the opinion authored by Judge Rebecca L. Pannell, the Court stated: “L&W contends Ms. Urness violated the foregoing rules by reading its privileged e-mails. This is incorrect. The rules do not prohibit a lawyer from reading inadvertently disclosed information that is subject to a claim of privilege. The only proscription is of the failure to take corrective action.”
The Court also stated: “L & W also claims Ms. Urness somehow purposefully ‘looked behind the redactions’ to view privileged materials…Had this occurred, it would have been a significant ethical breach…But the record does not support L & W’s claim. When Mr. Ahrend’s office produced the discovery responses, his staff advised Ms. Urness that information subject to a claim of privilege had been redacted. Proper redaction means taking reasonable steps to prevent disclosure of confidential metadata…There is nothing improper or unreasonable in conducting a word search on materials containing redactions. Nor is it unethical to simply read the results of that word search.”
However, the Court also stated: “While the rules did not forbid Ms. Urness from reading the e-mail excerpts, the record nevertheless indicates she violated RPC 4.4(b) and CR 26(b)(6)…Ms. Urness may have disagreed with the claim of privilege, but this did not excuse her from taking corrective action. Upon discovering electronically stored information subject to a claim of privilege, Ms. Urness was required to notify Mr. Ahrend and either return, sequester, or destroy the materials in question…Ms. Urness’s failure to take corrective action upon discovery of the privileged information and her use of the materials in support of summary judgment are violations that required some sort of sanction.”
Considering four factors trial courts must consider in determining whether disqualification is an appropriate remedy for an attorney’s access to privileged information, the Court found that 1) prejudice had not been shown, 2) while fault was shown, plaintiff’s counsel’s “culpability is not as severe as claimed by L&W”, 3) due to confusion over the redactions, the Court was unpersuaded that plaintiff’s counsel had the knowledge to engage in intentional misconduct, and 4) the possibility of lesser sanctions existed.
As a result, the Court stated: “None of the four applicable factors mandate disqualification as an appropriate remedy for Ms. Urness’s rule violations” and “The trial court did not abuse its discretion” in its ruling of disqualification sanctions denied for plaintiff’s counsel.
So, what do you think? Do you agree with both courts’ ruling of disqualification sanctions denied for plaintiff’s counsel? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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What metadata?!? Must courts so often fail to supply sufficient information to truly understand what happened? These are e-mails and the opinion indicates that the producing party intentionally left header data in the produced documents, including the content of subject lines. Too, subject lines aren’t metadata in any reasonable definition of the term. So, that’s not the source of what they’re calling “metadata.”
So, is what the receiving party searched derived from a load file with extracted text? That wouldn’t be metadata either, but both sides’ counsels’ limited grasp of ESI implicit in the decision suggests that load files weren’t produced. This sounds more like a DIY screwup.
So, again, what metadata? From what feature(s) of the message? Header? Message body content? Attachments?
If lawyers in Washington State are to derive any useful guidance from this decision beyond inchoate apprehension, the “how” of this failure matters. Else, anyone using review tools is at risk of possible disqualification and disapprobation. More, what should the producing counsel have done to obviate the risk? We need to know the cause to discern the remedy, not just be advised of an occult symptom.
Don’t you hate it when people toss off terms like metadata in the context of email without caring to define it with greater specificity than “data about data.” Grrrr.
I agree with you, Craig! I tried to see if I could find the previous ruling to get more info, but couldn’t find it. Many judges don’t understand enough of the details to realize the importance of being more specific.
According to the notes, defense counsel used DocReviewPad (https://www.litsoftware.com/docreviewpad) to conduct his review. Hmmm.
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