Edward S. Cheng quoted in Massachusetts Lawyers Weekly on inadvertent disclosure of privileged documents

March 28, 2019

Edward S. Cheng, a partner in the firm’s Litigation Department, was quoted in Massachusetts Lawyers Weekly on March 21, 2019.  The article, “Despite attorney’s review, disclosure still ‘inadvertent,'” addresses Vigor Works, LLC v. White Skanska, JV, in which Superior Court Judge Mitchell H. Kaplan ruled that a party could be forced to to return or destroy privileged attorney-client communications inadvertently disclosed in discovery, even if an attorney had reviewed the documents and consciously included them in document production.

Read the full article on Massachusetts Lawyers Weekly (subscriber content).

From the article:

Boston attorney Edward S. Cheng said it also was not surprising to see Kaplan lean away from an inadvertent waiver of privilege once he concluded that the error was understandable.

As soon as documents hit the file, it is not unusual for a cover sheet to get separated from its underlying document, Cheng said. From a practical standpoint, he said, it is a good habit for the preparer of an unused cover sheet to write “never sent” on it, which may help orient a person coming to the file for the first time in the future.

“You can’t assume you’ll still be working on the case a year from now,” he said.

While the decision does not detail the extent of the reviewing attorney’s efforts to investigate the circumstances surrounding the document, Vigor Works offers a reminder of how important it can be to seek out additional information if a document looks unusual, Cheng said.