Privileged Documents Sent to Expert Not Waived?

Because so many people are involved in the everyday step of sending records from a law office to an expert, the mistake of inadvertantly including privileged information occurs now and again.  Is it waiver?  Will the jury see it?

In Nan H. Mullins, D.M.D. v. Alice Tompkins (Benton, Webster and Roberts),  the unfortunate defense counsel faced this discovery catestrophe and it lead to an appeal.  In this case, the defense expert received a copy of defense counsel’s evaluation letter sent to the defendant and insurance company as well as emails between defendant and lawyer.handoff

The court held that the documents were ordinarily privileged and that mere accidental production does not automatically waive the privilege, see Fla.R.Civ.P. 1.280(b)(4)(B).  Since, here, the expert testified he never read nor relied upon them, there was no breach and no reason for disclosure (although we are curious how this was not caught during the expert’s review of what was sent to him and the lawyer’s pre-deposition conference).

The Panel further pointed out that even if it was discoverable, it may not be admissible to be paraded in front of the jury.

Ethics
Florida Supreme Court Allows Judges to be Facebook Friends With Lawyers But Four Justices Disagree With the Practice (“I write to strongly urge judges not to participate in Facebook”)

The Florida Supreme Court resolved a conflict between two intermediate appellate courts when it determined that a judge-lawyer “Facebook friend” relationship, alone, was not enough to warrant recusal of the judge.  The Court deemed its position was the majority position around the country.  However, four justices noted that caution, if …

E-discovery
NBI CLE: Facebook, Twitter, Instagram, Email, and Smartphone Evidence (Florida)

Special thanks to National Business Institute (NBI) for hosting this 2-day CLE seminar in Fort Lauderdale, Florida. You can find the seminar information (and download the audio) here. My topics included: Apps and Emerging Technology You Must Know Preserving Electronic Evidence and Avoiding Spoliation Social Media Cases Metadata Made Simple …

Evidence
In Butoh Dance / Suicide Case, Court Rules that Emails & Skype into Florida Create Jurisdiction Over Katsura Kan, Dance Instructor

Can Florida obtain personal jurisdiction over someone just because he/she sent emails or Skyped with another person in Florida?  In the unusual case of Tibor Stern, as personal representative of the Estate of Sharon Stern v. Terugoshi Kotoura a/k/a Katsura Kan, the answer is yes. The Facts of the Case …