PRESENT: Koontz, Kinser, Lemons, Goodwyn, Millette, and Mims,
JJ., and Russell, S.J.
ANGELA WALTON
OPINION BY
v. Record No. 091009 JUSTICE LEROY F. MILLETTE, JR.
June 10, 2010
MID-ATLANTIC SPINE SPECIALISTS,
P.C., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
C. Peter Tench, Judge
In this medical malpractice case, we consider whether the
defendant doctor waived the attorney-client privilege for a
letter he wrote to his attorney regarding potential negligence
in his examination of key x-rays when that letter was produced
to the plaintiff during discovery. We hold the doctor’s
disclosure of the letter was inadvertent, but that the doctor
waived his attorney-client privilege by failing to take
sufficient precautions to prevent the inadvertent disclosure.
BACKGROUND
Angela Walton suffered a workplace injury to her wrist and
began treatment with Jeffrey Moore, M.D., an orthopedic surgeon,
and his practice group, Mid-Atlantic Spine Specialists, P.C.
(Mid-Atlantic) (collectively, the doctors). Dr. Moore treated
Walton’s broken wrist from November 1998 to May 1999.
Walton filed a workers’ compensation claim and later filed
a motion for judgment against the doctors, seeking damages for
medical malpractice associated with the examination, diagnosis,
and treatment of her wrist injury.
On November 24, 1998, Dr. Moore took an x-ray of Walton’s
wrist. Dr. Moore took another x-ray of Walton’s wrist on
December 1, 1998. After Walton’s December 1, 1998 appointment,
Dr. Moore noted in her medical record that: “Radiographs were
taken in plaster. The thumb looks unremarkable. Do not see any
fracture here. The overall alignment looks good.”
However, after reviewing the x-rays almost three years
later Dr. Moore wrote a letter to his attorney on October 30,
2001 (the letter), in which he explained his thought process in
the treatment he provided her. In reference to the December 1st
x-ray, Dr. Moore wrote:
I made a comment that the overall alignment looks
“good.” I am not convinced I was actually
looking at the x-ray from 12/01/98, and may have
actually been looking at comparison film of
11/24/98, and mistakenly thought it was the
recent follow-up x-ray on that day in the office.
I simply cannot remember these events, but I do
not consider her overall alignment as looking
“good” on 12/01/98.
According to Dr. Moore, he kept his file copy of the letter in a
white binder, while medical records were contained in a manila
folder.
During discovery in the workers’ compensation case, a
subpoena duces tecum was issued to Mid-Atlantic. Mid-Atlantic
hired Smart Copy Corporation (Smart Copy) to gather the
2
subpoenaed documents. Smart Copy obtained a copy of the letter
and produced it to the attorney for Walton’s employer in the
workers’ compensation case. The record does not show how Smart
Copy obtained a copy of the letter.
The letter was first produced to Walton’s counsel in the
medical malpractice case in November 2004. 1 Walton asserts that
she notified the doctors that she was in possession of the
letter in her June 2006 answers to interrogatories.
Interrogatory 11 requested information about any statements by
the doctors which Walton “consider[ed] to be an admission or
otherwise probative of liability or negligence.” Walton
answered as follows:
[Dr. Moore] has authored a letter which [Walton]
considers to be an admission and/or probative of
liability. The date of the letter is October 30,
2001 and was produced by [Dr. Moore] to the
[Workers’] Compensation Commission. As such,
[Walton] is unaware how many people have read the
letter, but believe[s] the number is substantial.
[Dr. Moore] authored the letter and as such is
aware of its contents.
However, the doctors assert they did not learn that
Walton was in possession of the letter until they were notified
in October 2007 that Walton had the letter and intended to use
it at trial.
1
Walton asserted that counsel representing Walton’s
employer in the worker’s compensation case also sent the letter
to the doctors’ counsel at that time in response to a subpoena
duces tecum.
3
In November 2007, the doctors filed a motion for a
protective order “against the use and/or distribution of [the]
letter,” alleging that it is protected by the attorney-client
privilege, and “contains retrospective critical analysis of the
case by [Dr. Moore] and his attorney.” The circuit court held
several hearings on the doctors’ motion. At the first hearing,
the circuit court determined that
disclosure has to be voluntary or there is
not a waiver. If it’s involuntary
disclosure, there is not a waiver. If it’s
. . . inadvertent or by mistake, if we show
this to be inadvertent, then there can be a
waiver, then we have . . . Lois Sportswear[,
U.S.A., Inc. v. Levi Strauss & Co., 104
F.R.D. 103, 105 (S.D.N.Y. 1985)], those
factors.
It was undisputed that Dr. Moore’s attorney did not disclose the
letter, and neither party argued that criminal behavior or bad
faith was involved in the production of the letter. The circuit
court took the motion under advisement to give the parties the
opportunity to present evidence regarding how Smart Copy
obtained the allegedly confidential document.
At the second hearing, the circuit court applied a five-
factor test for inadvertent disclosure: (1) the reasonableness
of precautions taken, (2) the number of the inadvertent
disclosures, (3) the extent of disclosure, (4) the delay and
measures taken to rectify the disclosure, and (5) the interests
of justice. Based on this analysis, the circuit court made
4
factual findings and held that the privilege had been waived.
The trial judge concluded that
the only logical inference . . . is that
Smart [Copy] copied according to their
procedures and the medical records were
provided to them and this document had to be
commingled with them. I can’t believe that
Smart [Copy] went into a separate place to
take a binder that was not authorized and
copied it.
After further argument by counsel, the circuit court again took
the motion under advisement to allow the doctors to “bring . . .
some evidence to show how the [letter] allegedly got out of Dr.
Moore’s hands and into the hands of Smart [Copy].”
In February 2009, the doctors filed a motion in limine,
asking the circuit court to prohibit Walton’s counsel from
“asking questions of Dr. Moore regarding any opinions regarding
his current interpretation of events that occurred in 1998
and/or 1999.” In its brief in support of the motion in limine,
the doctors argued that Dr. Moore had not been designated as an
expert witness, and Dr. Moore would only testify regarding his
care and treatment of Walton and his contemporaneous
interpretation of how Walton was progressing at the time of
treatment.
At the third hearing on the doctors’ motion for a
protective order, counsel for Walton and for the doctors made
representations to the circuit court concerning the testimony of
5
relevant employees of Mid-Atlantic and Dr. Moore’s front office
staff, and Smart Copy, who were employed in 2004, concerning
discovery procedures. However, the circuit court concluded that
it was not possible to determine how the letter came to be
produced.
The circuit court granted the doctors’ motion, ruling that
the letter was privileged, had been “involuntarily” disclosed,
and there had been no waiver. The circuit court, in its ruling,
stated: “And being involuntary by the fact that we don’t know
how [the letter] was disclosed, but we do know that Dr. Moore
has indicated that he didn’t give permission and he didn’t
provide it, and it was not in the records he had, and nobody
knows how it got disclosed.” The circuit court entered an order
“prohibit[ing] [Walton] from any distribution of the privileged
correspondence, including but not limited to distributing the
letter to [her] experts, and [that] there [would] be no mention
of or use of the letter or its content at any trial of this
matter.”
The circuit court also granted the doctors’ motion in
limine, and ordered that Walton’s counsel was “precluded from
asking any questions of Dr. Moore requiring his expert opinions
including his retrospective interpretation of events that
occurred during his treatment of [Walton] during 1998 and/or
1999.”
6
At trial, Dr. Richard Wells testified, as Walton’s expert
witness, that it would be a breach of the standard of care if
Dr. Moore did not look at the December 1, 1998 x-ray. Dr. Wells
also testified that it would be a breach of the standard of care
if Dr. Moore mistakenly looked at the November 24, 1998 x-ray
thinking it was the December 1st x-ray. Likewise, Dr. Terrence
O’Donovan testified as an expert for Walton that it would be a
breach of the standard of care if Dr. Moore failed to look at an
x-ray that was taken or if he mistakenly looked at the November
24th x-ray thinking it was the December 1st x-ray.
Dr. Moore testified that he had no recollection of his
analysis of the x-rays because he “can’t remember them that far
back.” Dr. Moore also testified that during his December 1,
1998 examination of Walton, he took another x-ray “to check two
things, . . . the fracture as well as the thumb and make sure
the thumb looked good on x-ray.” Dr. Moore testified that
[t]he alignment was good. All of that was
good. The x-ray of the radius showed . . .
some residual dorsal tilt, and that is that
slight settling that occurs that we all
heard about. It settles a little bit,
natural tendency. They all do it . . . but
there had been no significant change in
anything that required me to do anything
differently.
Walton’s counsel examined Dr. Moore out of the presence of
the jury for purposes of a proffer regarding the excluded
evidence. When Dr. Moore was asked, “Doctor, in fact, you may
7
have been mistakenly looking at the November 24, 1998, film when
you thought you were looking at the December 1, 1998, film;
isn’t that true?” Dr. Moore answered, “Anything is possible.”
Walton’s counsel also proffered testimony from Dr. Gregory
Degnan that it would have been a breach of the standard of care
if, on December 1, 1998, after taking an x-ray, Dr. Moore did
not look at the x-ray or if he mistakenly picked up the November
24, 1998 x-ray and thought he was looking at the December 1st x-
ray.
The jury rendered a verdict in favor of the doctors and the
circuit court entered final judgment on the verdict.
DISCUSSION
As a general rule, confidential communications between an
attorney and his or her client made in the course of that
relationship and concerning the subject matter of the attorney’s
representation are privileged from disclosure. Banks v. Mario
Indus., 274 Va. 438, 453, 650 S.E.2d 687, 695 (2007);
Commonwealth v. Edwards, 235 Va. 499, 508-09, 370 S.E.2d 296,
301 (1988). The objective of the attorney-client privilege is
to encourage clients to communicate with attorneys freely,
without fearing disclosure of those communications made in the
course of representation, thereby enabling attorneys to provide
informed and thorough legal advice. Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981). “Nevertheless, the privilege
8
is an exception to the general duty to disclose, is an obstacle
to investigation of the truth, and should be strictly
construed.” Edwards, 235 Va. at 509, 370 S.E.2d at 301.
The attorney-client privilege may be expressly or impliedly
waived by the client’s conduct. Banks, 274 Va. at 453-54, 650
S.E.2d at 695-96; Edwards, 235 Va. at 509, 370 S.E.2d at 301.
Courts must consider the specific facts of each case in making a
waiver determination, as there is no bright line rule for what
constitutes waiver. Grant v. Harris, 116 Va. 642, 648, 82 S.E.
718, 719 (1914). The proponent of the privilege has the burden
to establish that the attorney-client relationship existed, that
the communication under consideration is privileged, and that
the privilege was not waived. Edwards, 235 Va. at 509, 370
S.E.2d at 301; United States v. Jones, 696 F.2d 1069, 1072 (4th
Cir. 1982).
In this case, the parties do not dispute the existence of
an attorney-client relationship or that the letter was
privileged at the time it was written. The issue presented is
whether Dr. Moore waived the privilege attached to the letter. 2
Whether inadvertent or involuntary disclosure of a privileged
document constitutes a waiver of the attorney-client privilege
2
Walton does not contend that Dr. Moore’s attorney waived
the attorney-client privilege.
9
is a mixed question of law and fact subject to de novo review.
In re Grand Jury Proceedings, 33 F.3d 342, 353 (4th Cir. 1994).
A. Walton’s Argument
Walton assigns error to the circuit court’s ruling that the
privilege attached to the letter was not waived. Walton asserts
the letter was produced to her during the ordinary course of
discovery, the doctors did not produce any evidence that the
letter was disclosed as the result of criminal acts or bad
faith, and the letter contained an admission by Dr. Moore
regarding the most crucial liability issue in the case. Walton
contends that the disclosure was not involuntary, but
inadvertent, and that the circuit court should have applied a
multi-factor analysis using considerations often attributed to
Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D.
103, (S.D.N.Y 1985), which is applied by many jurisdictions in
cases of inadvertent disclosure of privileged documents during
the ordinary course of discovery. 3
3
We note that the recently promulgated Federal Rule of
Evidence 502(b) adopts general standards concerning whether the
party holding the privilege or protection took reasonable steps
to prevent disclosure, and promptly took reasonable steps to
rectify the error after inadvertent disclosure. The drafters
state that they intend to make available for consideration the
factors articulated in Lois Sportswear and Hartford Fire Ins.
Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985). Advisory
Committee Note of 2008 to Fed. R. Evid. 502.
10
Walton argues that courts have only applied the involuntary
disclosure test when there is evidence that the disclosure
resulted from criminal activity or bad faith. Walton maintains
that the doctors failed to produce any evidence of criminal
activity, bad faith, or any other explanation for the disclosure
of the letter besides a unilateral error of “carelessly placing
a privileged document in a box of discovery documents and
delivering them to the other side.” Maldonado v. New Jersey,
225 F.R.D. 120, 129 (D. N.J. 2004). Walton contends that the
doctors’ position that there was no evidence that Dr. Moore
himself was careless in placing the privileged document with the
other materials to be produced is an insufficient reason to find
the disclosure was involuntary. Walton asserts that Dr. Moore
took no precautions to protect against the disclosure of the
letter and did not take any steps to rectify disclosure until
three years after he was first notified of the disclosure in
November 2004. Walton argues that, under these facts, the
doctors failed to carry their burden to show that the attorney-
client privilege was not waived.
Additionally, Walton argues that the interests of justice
require the letter to be admissible. Walton asserts that the
December 1st x-ray and its interpretation were the most
important pieces of evidence at trial, because Dr. Moore did not
know if his notes were accurate regarding the most crucial x-
11
ray. Walton argues that the circuit court erred by excluding
the letter and allowing the jury to be misled.
B. The Doctors’ Response
The doctors argue that the attorney-client privilege
protecting the letter has not been waived, as the disclosure of
the letter cannot be inadvertent if not made by a party to the
privilege, in this case either Dr. Moore or his attorney.
According to Dr. Moore, Mid-Atlantic and/or Smart Copy disclosed
the letter in the course of the separate, independent workers’
compensation case and, therefore, the disclosure can only be
classified as involuntary.
The doctors, citing cases from other jurisdictions, contend
that other courts have ruled that involuntary disclosure does
not waive the attorney-client privilege when the party takes
reasonable precautions to prevent the disclosure. The doctors
maintain that, like the proponents of the privilege in those
cases, they did not cause the disclosure through their own
actions or inactions. The doctors assert that several
individuals had access to the letter and all denied
responsibility for its production. The circuit court could not
determine who disclosed the letter and, therefore, the attorney-
client privilege remained intact.
The doctors argue that Dr. Moore took reasonable
precautions to prevent disclosure. In an affidavit by Dr.
12
Moore, he stated that his litigation materials were kept in a
white three-ring binder with no numbers on the side, in contrast
to medical records, which were kept in a manila folder with
numbers on the side. The doctors assert that Dr. Moore, by
keeping the letter in a separate binder of a unique color, tried
to ensure that his legal documents did not commingle with
patient records, and that he cannot be held responsible for the
unexplained production of the letter.
Moreover, the doctors contend that criminal activity or bad
faith is not required for involuntary disclosure and, even if
wrongdoing is required, the Mid-Atlantic employees and/or Smart
Copy employees misappropriated Dr. Moore’s personal documents.
According to the doctors, Dr. Moore met his burden of proof
because the undisputed evidence was that he and his attorney did
not disclose the letter, and that either Mid-Atlantic or Smart
Copy disclosed the letter, or the disclosure was otherwise
unexplained.
Lastly, the doctors argue that the exclusion of the letter
was harmless error because Walton did not assign error to the
circuit court’s grant of the doctors’ motion in limine. The
doctors assert that the letter contained only expert opinion and
retrospective critical analysis, but that Dr. Moore was not
designated as an expert witness.
13
C. Analysis
As an initial matter, we hold that the disclosure of the
letter was inadvertent, not involuntary, and that the circuit
court erred as a matter of law in finding that the disclosure
was involuntary instead of inadvertent. There was no evidence
suggesting that the letter was knowingly produced by someone
other than the holder of the privilege through criminal activity
or bad faith, and the doctors do not argue that any criminal
activity or bad faith was involved. All of the evidence
indicates that the doctors mistakenly produced the letter, and
therefore its disclosure was inadvertent, not involuntary.
The determination whether the disclosure was involuntary
does not rest on the subjective intent of the doctors. The
doctors’ intention to maintain the attorney-client privilege
does not lead inevitably to the conclusion that the disclosure
was involuntary instead of inadvertent. If subjective intention
of the proponent of the privilege controlled, a disclosure would
always be considered involuntary. However, in the waiver
context, involuntary means that another person accomplished the
disclosure through criminal activity or bad faith, without the
consent of the proponent of the privilege. See, e.g., In re
Grand Jury Proceedings Involving Berkley and Co., Inc., 466
F.Supp. 863, 869 (D. Minn. 1979) (fired employee stole company’s
documents and disclosed them to the government); Resolution
14
Trust Corp. v. Clayton Dean, 813 F.Supp. 1426, 1430 (D. Ariz.
1993) (internal memorandum leaked to newspaper); Maldonado, 225
F.R.D. at 125-26 (letter from defendants to former attorney
inexplicably found in plaintiff’s mailbox).
“The inadvertent production of a privileged document is a
specter that haunts every document intensive case.” New Bank of
New England v. Marine Midland Realty Corp., 138 F.R.D. 479, 479-
80 (E.D. Va. 1991). Inadvertent disclosure of a privileged
document includes a failure to exercise proper precautions to
safeguard the privileged document, and does not require that the
disclosure be a result of criminal activity or bad faith. For a
disclosure to be considered inadvertent it is not required, as
contended by the doctors at oral argument, that “an attorney or
somebody on behalf of the client ma[de] a voluntary disclosure,
in other words, they g[a]ve it up knowingly, but then they
claim[ed] it was inadvertent, [claiming that] ‘I made a mistake
when I gave it up.’ ” While knowingly, but mistakenly,
producing a document may be an inadvertent disclosure,
unknowingly providing access to a document by failing to
implement sufficient precautions to maintain its confidentiality
may also result in an inadvertent disclosure.
Once the trial court determines that a disclosure of one or
more communications is inadvertent, it must then determine
whether the attorney-client privilege has been waived for the
15
items produced. In cases of inadvertent disclosure of a document
protected by the attorney-client privilege, we adopt the multi-
factor analysis set forth below, requiring the court to assess
whether the holder of the privilege or protection took
reasonable steps to prevent disclosure and promptly took
reasonable steps to rectify the error. This approach avoids the
extremes, see New Bank of New England, 138 F.R.D. at 482, of an
across-the-board rule of waiver when a communication has been
produced, an approach often attributed to Dean Wigmore, 4 or a
blanket “no waiver” rule which would hold that negligence by
counsel or a producing party can never constitute waiver for
lack of clear and intentional decision to waive protections.
Id.
Under the standards we now adopt, waiver may occur if the
disclosing party failed to take reasonable measures to ensure
and maintain the document’s confidentiality, or to take prompt
and reasonable steps to rectify the error. See id. at 482.
This approach balances concerns of fairness and the fundamental
importance of protection of the privilege long recognized in
Virginia law “against the care or negligence with which the
privilege is guarded.” Lois Sportswear, 104 F.R.D. at 105.
4
See, e.g., New Bank of New England, 138 F.R.D. at 481,
noting that the Wigmore approach held that the privilege should
be treated as destroyed by any disclosure under a narrow
16
Under this approach, the following factors are to be included in
the court’s consideration: (1) the reasonableness of the
precautions to prevent inadvertent disclosures, (2) the time
taken to rectify the error, (3) the scope of the discovery, (4)
the extent of the disclosure, and (5) whether the party
asserting the claim of privilege or protection for the
communication has used its unavailability for misleading or
otherwise improper or overreaching purposes in the litigation,
making it unfair to allow the party to invoke confidentiality
under the circumstances. See, e.g., Koch v. Cox, 489 F.3d 384,
390 (D.C. Cir. 2007)(considering whether the party asserting
privilege seeks to employ that privilege both as a sword and as
a shield, and thereby to gain litigation advantage); United
States v. Desir, 273 F.3d 39, 45 (1st Cir. 2001)(considering
unfairness of allowing invocation of the privilege when a party
testifies about portions of a communication or selectively
asserts protections, because the “privilege cannot be used as
both a shield and a sword”); United States v. Workman, 138 F.3d
1261, 1263-64 (8th Cir. 1998). Thus, there may be “a
determination that the privilege holder’s conduct makes it
unfair to allow subsequent assertion of the privilege.” United
States v. Yerardi, 192 F.3d 14, 18 (1st Cir. 1999)(“Probably the
construction of the privilege that emphasizes that
confidentiality is an exception to the general duty to disclose.
17
most common example is a privilege holder’s effort to answer
some questions in a subject area (usually those that serve the
privilege holder’s interests) but not others (those that harm
the privilege holder’s interest). Such a pick-and-choose
approach may seem unfair in general or because it distorts the
evidence that is presented to the factfinder”). See
Developments in the Law – Privileged Communications, 98 Harv. L.
Rev. 1450, 1629-31 (1985).
None of these factors is independently dispositive, and the
court must also consider any other factors arising from the
posture of the case at bar that have a material bearing on the
reasonableness issues. Applying the relevant factors in this
case to determine whether the disclosing party took reasonable
measures to ensure and maintain the allegedly privileged
document’s confidentiality, and took prompt and reasonable steps
to rectify the error, we hold that the doctors waived the
attorney-client privilege attached to the letter. Upon
consideration of the record as a whole, we conclude that the
doctors failed to take reasonable measures to ensure and
maintain the confidentiality of the letter. We will analyze
each of the five primary factors in turn. Our analysis takes
into consideration Dr. Moore’s actions, as well as those of Mid-
Atlantic, as the practice group to which Dr. Moore belonged and
with which he rendered medical treatment to Walton. We also
18
give deference to the circuit court’s findings of fact made
during the second hearing on the doctors’ motion for a
protective order against use of the letter. The Daily Press,
Inc. v. City of Newport News, 265 Va. 304, 309, 576 S.E.2d 430,
432-33 (2003).
1. Reasonableness of Precautions
We first consider the reasonableness of Dr. Moore’s
precautions to prevent an inadvertent disclosure of the letter.
As the holder of the attorney-client privilege, Dr. Moore was
charged with the responsibility to take reasonable precautions
to safeguard the letter and to preserve its confidentiality.
Regarding the care exercised to ensure the letter was not
disclosed, Dr. Moore “kept it in a separate notebook, and he
kept it in his office.” The separate notebook was a white
binder without numbers, whereas medical records were kept in a
manila folder with numbers. However, Dr. Moore also kept
medical records in his office. The notebook was not marked
privileged or confidential, nor was the letter itself marked
privileged or confidential. The number of documents to be
reviewed before release was not extensive. There were no time
constraints in responding to the discovery request that would
have precluded a review of what was produced.
Neither the doctors nor their counsel conducted a privilege
review of the documents gathered by Smart Copy. In fact, there
19
was no evidence presented regarding any procedure for reviewing
documents before they were copied by Smart Copy. Dr. Moore
could have insisted upon additional review, such as after the
documents were copied by Smart Copy and prior to their
production. See Parkway Gallery Furniture, Inc. v.
Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46, 51
(M.D. N.C. 1987).
When a party utilizes an independent copy service like
Smart Copy for purposes of document production, it is especially
important to clearly mark documents intended to remain
confidential to avoid commingling such documents with documents
that are properly subject to discovery. The doctors did not
establish that they took sufficient efforts to supervise the
Smart Copy employees or to prevent intermingling of the letter
with unprivileged, non-confidential documents. We therefore
conclude that the doctors failed to take reasonable precautions
to prevent an inadvertent disclosure of the letter.
2. Time Taken to Rectify Error
There is some dispute as to when the doctors were notified
that the letter had been produced. Walton contends that the
doctors were informed that the letter had been produced during
the workers’ compensation case in November 2004. Regardless,
the doctors were again notified, in June 2006, that the letter
had been produced to Walton’s attorney through Walton’s answer
20
to Interrogatory 11. In her answer, she refers specifically to
a letter dated October 30, 2001, authored by Dr. Moore, which
was produced during the workers’ compensation case, and which
she “consider[s] to be an admission or otherwise probative of
liability.” Both parties agree that Walton’s attorney contacted
the doctors’ attorney in October 2007 regarding the proposed use
of the letter, but the doctors argue that they had not
previously been notified that the letter had been disclosed.
The doctors filed their motion for a protective order in
November 2007.
Based on the information conveyed in Walton’s answer to
Interrogatory 11, the doctors should have inquired into the
whereabouts of the letter in question and attempted to rectify
any potential error in its disclosure. A year and a half passed
between service of the answers to interrogatories to the doctors
and their filing of a protective order. Even in October 2007,
the doctors did not take immediate measures to secure its return
and to protect the privilege. Instead, the doctors allowed a
month to lapse before seeking relief from the circuit court in
the form of a protective order. The doctors should have taken
immediate action to attempt to maintain the privilege attached
to the letter. 5
5
See, e.g., the recent amendment to the Part Four Rules of
Court adding Rule 4:1(b)(6)(ii), setting up a notice procedure
21
3. Scope of Discovery
The doctors do not contend that the discovery in this case
was extensive or involved a massive exchange of documents. Also
lacking was any evidence of time constraints or of any other
factor impeding the doctors’ ability to monitor the documents
being produced. Because the discovery was not expedited or
extensive, the doctors are given less leeway regarding their
precautions to ensure the letter was not disclosed.
4. Extent of Disclosure
The disclosure of the letter was complete, because it was
disclosed not only to Walton, but also in the workers’
compensation case to the attorney for Walton’s employer, and
there is no indication that the document has not been copied,
digested, and analyzed. The circuit court found that the
privilege was permanently destroyed, so that disclosure cannot
be cured simply by a return of the document.
5. Interests of Justice
available when “a party believes that a document or
electronically stored information that has already been produced
is privileged or its confidentiality is otherwise protected,”
halting use and dissemination of the document and providing an
opportunity to obtain judicial determination.
We also note that the General Assembly has enacted a new
Code § 8.01-420.7 in its 2010 session, which adopts, effective
July 1, 2010, provisions that implement the standards
articulated in this opinion to govern, inter alia, inadvertent
waiver of the attorney-client privilege and work product
doctrine confidentiality protections. See 2010 Acts ch. 350.
22
Lastly, we consider whether, by asserting the claim of
privilege as to the letter, the doctors used its unavailability
for a misleading or otherwise improper or overreaching purpose,
making it unfair under the circumstances to allow the doctors to
invoke confidentiality. Waiver of the attorney-client privilege
should not be found in every instance in which upholding the
protections of confidentiality or privilege may unfairly become
an obstacle to the truth, because such an expansive view of
waiver would defeat the salutary purpose of the attorney-client
privilege. However, parties should not be permitted to use the
privilege as both a shield, preventing the admission of
evidence, and as a sword to mislead the finder of fact by
allowing evidence that would be impeached by the privileged
information if it had not been suppressed.
We hold that this factor also tips in favor of Walton. By
ruling that the disclosure was involuntary and that the
privilege attached to the letter had not been waived, the
circuit court allowed the doctors’ counsel to engage in
questioning that had significant potential to mislead the jury.
Although framed as a question about what Dr. Moore wrote in his
December 1st note, Dr. Moore’s answer led the jury to believe he
had reviewed the December 1st x-ray when the suppressed letter
may have impeached him by demonstrating that he may instead have
mistakenly reviewed the November 24th x-ray. The issue of which
23
x-ray Dr. Moore reviewed was a question of fact and a key to
Walton’s claim of negligence, and did not require either an
expert opinion or retrospective critical analysis.
Applying these five factors to the circumstances
surrounding the inadvertent disclosure of the letter, we hold
that the doctors did not fulfill their burden to prove that the
attorney-client privilege was not waived with respect to the
letter. While the attorney-client privilege serves a very
important function in the administration of justice, it is
subject to waiver, and the holder of the privilege is
responsible for exercising reasonable caution to ensure that the
privilege remains intact. For the proponent of the privilege to
enjoy the benefits of the privilege, he or she must also bear
the burden of taking sufficient measures to safeguard privileged
documents. Such measures were lacking in this case. Therefore,
the circuit court erred in ruling that the privilege was not
waived.
CONCLUSION
For the reasons stated, we will reverse the judgment
appealed from and remand the case to the circuit court for
further proceedings consistent with this opinion. Our decision
renders the doctors’ harmless error argument moot.
Reversed and remanded.
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