Plaintiff sustained a workplace injury to her wrist and
sought treatment with the Defendant doctor. Plaintiff filed a workers'
compensation claim and also an action against the doctor seeking damages for
medical malpractice arising out of the examination, diagnosis, and treatment of
her wrist. Defendant took x-rays on November 24, 1998 and December 1, 1998.
Following the December 1, 1998, appointment, the doctor noted in the medical
records that Plaintiff's x-rays looked "good" and that there was no indication
of a fracture. However, three years later, the doctor wrote a letter to his
attorney dated October 30, 2001. The doctor explained that he may have been
looking at the wrong x-ray following the December 1, 1998 doctor's appointment.
The letter provided:
I am not convinced I was actually looking at the x-ray
from 12/01/98, and may have actually been looking at comparison film of
11/24/98, and mistakenly thought it was a recent follow up x-ray on that day
in the office. I simply cannot remember these events, but I do not consider
her overall alignment as looking "good" on 12/01/98.
Defendant explained that he kept a file copy of the
letter in a white unmarked, unlabeled binder. All medical records were
contained in a manila folder. Both the white binder and medical records were
stored in his office.
Discovery undertaken in the workers' compensation claim
included a subpoena duces tecum issued to the
doctor's practice group. The practice group hired a company called Smart
Copy Corporation ("Smart Copy") to gather and organize the subpoenaed
documents. Smart Copy obtained the letter dated October 30, 2001 and
produced it to Plaintiff's counsel in the workers' compensation claim. The
record is silent on how Smart Copy obtained a copy of the letter.
The letter was produced to Plaintiff's counsel in the
medical malpractice case in November 2004. Walton again notified the doctor
that she was in possession of the letter by way of her June 2006 Answers to
Interrogatories.
In November 2007, the doctor filed a Motion for a
Protective Order arguing that the correspondence was protected by the
attorney-client privilege and seeking an order preventing the use or
distribution of the letter. The Circuit Court entered an order prohibiting
the Plaintiff from distributing the documents, which included a prohibition
that the Plaintiff use the document in connection with her experts or that
she mention any part of the document or the documents introduced at trial.
The jury returned a verdict in favor of the doctor and the Circuit Court
entered final judgment on the verdict.
The Plaintiff appealed the jury verdict and argued that
the trial court erroneously determined that the documents were protected by
the attorney-client privilege. Plaintiff argued that the privilege was
waived upon production to her counsel.
The Supreme Court of Virginia explained that the
attorney-client privilege may be expressly or impliedly waived by a client's
conduct. The Virginia courts must consider the specific facts of each case
in determining waiver. There is no bright line rule.
The Court explained there are two types of waiver:
inadvertent waiver and involuntary waiver. Involuntary disclosure means the
document was knowingly produced by someone other than the holder of the
privilege, the client, through criminal activity or bad faith. Inadvertent
disclosure is a production based on a mistake. Here, there are no facts to
indicate criminal activity or bad faith; therefore, the disclosure was not
involuntary.
Inadvertent disclosure includes failure to exercise
proper precautions to safeguard the document. There is no requirement that
the document disclosure be the result of criminal activity or bad faith. A
knowing but mistaken production of a document may be inadvertent disclosure,
but also unknowingly providing access to the document through a failure to
implement precaution to maintain its confidentiality is an inadvertent
disclosure.
After a trial court determines that a disclosure is
inadvertent, the next inquiry is whether the attorney-client privilege was
waived. The Supreme Court of Virginia adopted a new test to analyze waiver
of attorney-client privilege based on inadvertent disclosures. Courts should
look to the following factors: (1.) the reasonableness of the precautions to
prevent inadvertent disclosures, (2.) the time taken to rectify the error,
(3.) the scope of the discovery, (4.) the extent of the disclosure, and (5.)
whether the party asserting a claim of privilege or protection for the
communication has used its unavailability for misleading or otherwise
improper or overreaching purposes in litigation, making it unfair to allow
the party to invoke confidentiality under the circumstances. No single
factor is dispositive of the test, and the trial court must be careful to
consider all factors arising from the case.
The Court analyzed each prong of the five factor test
based on the facts of the instant case.
Reasonableness of precautions: The Defendant doctor was
charged with a responsibility to take reasonable precautions to protect his
correspondence and preserve its confidentiality. Here, the doctor kept it in
a separate notebook in his office. The notebook was plain white, without
numbers, labels, or identifiers. However, the doctor also kept medical
records in his office. Despite the fact that the practice group retained
Smart Copy to review and organize the documents, the doctor failed to make
any requests to review the document production before the third party
produced the documents. The Supreme Court found that the doctor failed to
clearly mark his binder with a confidential label or a label stating "do not
produce." Moreover, they failed to supervise adequately the document
production of the third party.
Time taken to rectify the error: Plaintiff contends
that the doctor first received notice in November 2004 of her possession of
the documents through the workers' compensation case. The doctors were again
notified in June 2006 by way of Plaintiff's Answers to Interrogatories. It
was not until October 2007 when the doctor's attorney contacted Plaintiff's
counsel regarding the use of the letter. Over a year and a half passed
between the service of the Answers to Interrogatories and the doctor's
filing of the protective order in November 2007.
Scope of discovery: Discovery in this case is not
extensive and did not involve a massive exchange of documents. Moreover,
there is no evidence to indicate insufficient time or other factors impeding
the doctor's ability to monitor the document production.
Extent of disclosure: The letter was totally and
completely disclosed. It was provided to the Workers' Compensation attorney
and also Plaintiff's counsel in the instant medical malpractice case. There
was no indication that the document had not been "copied, digested, and
analyzed." Accordingly, the disclosure could not be cured by simply
returning the documents.
Interest of justice: In general, parties should not be
allowed to use a privilege as a shield, by preventing the admission of
evidence, and as a sword, to mislead the fact finder by allowing evidence
that would be impeached by the privileged information if it had not been
suppressed. At trial, the doctor's attorney engaged in significant
questioning that could have potentially mislead the jury regarding the
doctor's review of the x-rays. Had the documents been admissible at trial,
the contents of the letter would have likely impeached the doctor's
testimony. Accordingly, the Supreme Court found that this factor tips in the
Plaintiff's favor.
The Supreme Court of Virginia held that the letter was
inadvertently disclosed to Plaintiff's counsel. They also found that the
Defendant failed to take adequate precautions to protect the confidentiality
of the letter; thus, the attorney-client privilege was waived.
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