Federal civil rule 26(b)(5)(B), like North
Dakota’s comparative rule, imposes obligations
on a party who has received notice from
opposing counsel that information produced
is subject to a claim of privilege or work-
product protection. According to the federal
rule, after being notified, the receiving party
“must promptly return, sequester, or destroy
the specified information and any copies it
has; must not use or disclose the information
until the claim is resolved; must take
reasonable steps to retrieve the information
if the party disclosed it before being notified;
and may promptly present the information to
the court under seal for a determination of the
claim.” 11
Virginia’s ethics rule imposes a similar duty
on a lawyer receiving inadvertently sent
information:
“Upon receiving such notice, any party
holding a copy of the designated material
shall sequester or destroy its copies thereof,
and shall not duplicate or disseminate such
material pending disposition of the claim
of privilege or protection by agreement, or
upon motion by any party. If a receiving
party has disclosed the information before
being notified of the claim of privilege
or other protection, that party must take
reasonable steps to retrieve the designated
material.” 12
North Dakota’s comparative ethics rule is
narrower and simply provides “A lawyer who
receives a document or electronically stored
information relating to the representation of
the lawyer’s client and knows or reasonably
should know the document or electronically
stored information was inadvertently sent
shall promptly notify the sender.” 13
Lessons from the Harleysville Insurance
case include: (1) the electronic transmission,
posting, and storage of confidential
information requires that both lawyers
and clients become and remain mindful of
security and the danger of loss; and (2) any
recipient of information that might have
been inadvertently sent has an legal and
ethical obligation to sequester or return that
information until the privileged states of the
information has be adjudicated.
1. Harleysville Insurance Company v. Holding
Funeral Home, Inc., et. al, No. 1:15cv00057
(W.D. Va. 2017), available at https://scholar.
google.com/scholar_case?case=980875745361653
0692&hl=en&as_sdt=6&as_vis=1&oi=scholarr
2. The notice stated:
“CONFIDENTIALITY NOTICE:
This e-mail contains information that is
privileged and confidential, and subject to
legal restrictions and penalties regarding its
unauthorized disclosure or other use. You
are prohibited from copying, distributing
or otherwise using this information if
you are not the intended recipient. If you
received this e-mail in error, please notify
me immediately by return e-mail, and delete
this e-mail and all attachments from your
system.”
3. Harleysville, at *4.
4. Id. at *4, *5.
5. Id. at *5, *6.
6. Id. at *6.
7. Id.
8. Id. at *7, *8.
9. Id. at *7.
10. Id. (quoting ePlus Inc. v. Lawson Software,
Inc., 280 F.R.D. 247, 255 (E.D. Va. 2012).
11. Id. at *8 (quoting Fed. R. Civ. P. 26(b)(5)
(B)).
12. Id. (quoting Va. Sup. Ct. R. 4.1(b)(6)(ii)).
13. N.D.R. Prof. Conduct 4.5(a).
EXPERIENCED
MEDIATION
SSTEVEN A. STORSLEE
NEW
CONTACT
INFORMATION
40 years as a civil litigator
20 years as a mediator
Substantial experience in
mediating oil field cases
Storslee
Law Firm, P.C.
Phone: (701) 226-3550
[email protected]
P.O. Box 996, Bismarck, ND 58502-0996
www.storsleemediation.com
SPRING 2017
27