No Reposal in Disposal

Turning trash into treasure doesn't necessarily refer to plucking sought-after recyclables from the waste stream. Private investigators, spies and reporters know that a trash bin can yield the unexpected and the rewarding.

An individual or company that intentionally or accidentally throws away documents or other telltale items has more at stake than mere annoyance or embarrassment. Mishandling these materials may cost valuable legal rights.

If a private detective picks through a company's garbage and finds items that can help his client in a lawsuit, the company may lose the right to claim attorney-client privilege for the contents of the purloined items.

Take the case of the president of an Illinois company who composed a series of letters to his lawyers. The letters ordinarily would not have been disclosed to third parties under the doctrine of attorney-client privilege. However, the executive tossed the hand- written drafts into his wastebasket. During routine end-of-day housekeeping, the wastebasket's contents were emptied into a large trash bag, which was dumped into an accessible container at the rear of the company's building.

At the time, the company was involved in litigation with a party that sent two people to the company's property where they picked through the trash.

When the company's attorneys discovered the shenanigans, they took the matter before the court. A federal magistrate, who had been assigned to handle pretrial matters, ordered the plaintiffs to return the documents. However, the presiding district judge overturned the order, finding that the company had indirectly waived its attorney-client privilege by failing to safeguard protected material. [Suburban Sew 'N Sweep Inc. v. Swiss-Bernina Inc., 91 (N.D. Ill. 1981)]

By comparison, a Maryland federal district court found that a party who had ripped the privileged materials into 16 pieces before discarding them showed an intention to keep the items confidential, and ordered them returned. [McCafferty's Inc. v. Bank of Glen Burnie, 79 F.R.D. 163 (D.Md. 1998)].

A law firm, which routinely handles and manages confidential materials, cannot rely on ordinary trash collection to protect client secrets. To guard against unwitting disclosure, firms routinely shred sensitive material, and advise clients to do the same.

When protected documents fall into the wrong hands, it's not always because of snoops and scoundrels. It can occur because someone at the law firm slips up and turns over privileged materials to an adversary.

To avoid mishaps, attentive attorneys do more than merely segregate documents before sending them to the opposition. They first remove the shielded documents from the work area, then personally review all items in the transmittal package before it leaves the office.

Even vigilant litigators occasionally find themselves and their clients compromised by inadvertent disclosure. But the better the precautions, the better chance of a court ordering the documents returned. Still, once an opponent has sneaked a peek, the damage is done.

The legal editor welcomes comments from readers. Contact Barry Shanoff via E-mail: [email protected]