Law Times

Law Times • June 9, 2014 Page 5 www.lawtimesnews.com Ruling a lesson about what to do with info mistakenly sent from other side By yamri Taddese Law Times ending a sensitive e-mail to the wrong person — and in some cases to the worst-possible person — is a common concern in the age of e-mail communication. But if lawyers are on the receiving end of an e-mail sent by mistake, us- ing that information against the sender could put them at risk of disqualification, a recent ruling suggests. There's a lesson for counsel in a ruling that saw a plaintiff 's lawyer removed from the record because he used confidential information accidentally sent to him. Instead of returning the document and destroying his copy, the plaintiff 's counsel in a personal injury case used the information in his cross- examination, according to Supe- rior Court Justice Gregory Ellies' May 26 ruling in White v. 123627 Canada Inc. that removed Sud- bury, Ont., law firm Wallbridge Wallbridge from the case. "The inadvertent disclosure of a privileged document by one side of a legal dispute to another is not unlike the transmission of an infection: the more quickly it is contained, the easier it may be to eradicate its harmful effect," wrote Ellies. The plaintiff 's lawyer said he believed the information had been sent to him intentionally. But the respondent's affidavits listed the documents, which contained a transcribed inter- view between the respondent and an insurance adjuster, as privileged information. "Plaintiff 's counsel did noth- ing to investigate the obvious discrepancy between the claim of privilege and the production of the document," wrote Ellies. "Instead, he attempted to use the privileged document for the purpose of cross-examining the witness during his examination for discovery. Not only did he fail to immediately return the document without copying or using it, he refused repeated re- quests to do so." Davis LLP partner Gavin MacKenzie says inadvertent dis- closure of confidential informa- tion is becoming more common. "I think it happens to almost every litigation lawyer at some point in their career. They will either disclose a document inad- vertently or will be the recipient of a document that is disclosed inadvertently," he says. "It occurs much more fre- quently these days because of e- mail. Sometimes you have an e- mail that includes all the lawyers in a case and your intent might be to send it to everybody with a common interest but the name of the lawyer on the other side isn't deleted." Cohen Sabsay LLP partner Howard Cohen says the judge "did the right thing" in this case. "The decision signals . . . if you take advantage of inadvertence by the other lawyer, you do so at your own peril," he says. It's about maintaining fair- ness in the process, he notes, "as opposed to creating an issue like the plaintiff 's counsel did in this case." Despite the frequency of errors like the one in this case, MacKenzie says removing law- yers from the record should be a drastic remedy reserved for the worst situations. Typically, a lawyer simply re- turns the documents and the mat- ter is over. "Unless it's in extraor- dinary circumstances, that's what should happen," says MacKenzie, adding litigants shouldn't be de- prived of their chosen counsel and suffer additional costs as well as delays due to what has become a very common error. "The lawyer should stop reading as soon as he or she real- izes what has happened and re- turn it to the other side and say, 'I only read the first sentence. I realize it's something that wasn't intended for me and I'm return- ing it,'" he says. "Generally speaking, if that oc- curs, there shouldn't be a risk of disqualification. In that kind of case, the responsibility should be borne by the lawyer and law firm that has made an inadvertent dis- closure of a privileged document, not the lawyer who receives [it]." In his ruling, Ellies, too, em- phasized the immediate need to contain the "infection." "Where nothing is done to deal with the problem, however, the prejudicial effect of the inad- vertent disclosure of a privileged document on the adjudication of the dispute between the par- ties, in particular, and the in- tegrity of the legal system, in general, can spread to the point where there is no alternative but to isolate the affected party, as I have reluctantly concluded I must do in this case," he wrote. MacKenzie says before mov- ing to disqualify lawyers, judges should consider how harmful the disclosure of the document has been. In White, the harm "was not obvious to me," he says. "It's very important that liti- gants have the right to be rep- resented by counsel of choice unless there's a very good reason for them not to have counsel of choice, especially where their counsel of choice has already been representing them for an extended period of time." But according to Malcolm Mercer, a partner at McCarthy Tétrault LLP, there was little to discourage the judge from re- moving counsel in this case as he not only kept the informa- tion but also used it against the opposing party. "How much of the privileged material was re- viewed? The answer is a lot, and it was used," he says. The key question, says Mercer, is the degree to which the contents are prejudicial. The fact that the lawyer in this case used the infor- mation "almost made the point that it was prejudicial," he adds. Ellies' decision also dealt with the difference in the degree of confidentiality in documents containing a statement from a third party versus one from a par- ty to the case. His ruling suggests there's less to protect when inad- vertently sent documents contain statements from a third party as that information is discoverable through other means. LT NEWS The wait is almost over. Soon we'll be delivering a Canadian version of Practical Law. Practical, up-to-date content designed for the front-line Canadian lawyer. Watch for it. Learn more at www.carswell.com/practicallawcanada IT'S PRACTICALLY HERE COMING SOON – PRACTICAL LAW CANADA 00218KE-A43429 Untitled-1 1 14-05-20 12:23 PM S Removing lawyers from the record should be a drastic remedy reserved for the worst situations, says Gavin MacKenzie.

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