On July 7, 2016, a few days before the Complaint, King contacted Alec Rothrock, who suggested that King speak to Kansas attorneys Nick Badgerow and Mike Matula. He also attached a copy of Burt Hill, Inc. v. Hassan, No. 09-1285, 2010 U.S. Dist. LEXIS 7492 (W.D. Pa. Jan. 29, 2010). Burt Hill, discussed extensively by Judge Birzer in her Order, extends the ethical rule which requires prompt notification of opposing counsel in the event of an inadvertent disclosure of confidential information to cases in which the disclosure has occurred through the intentional wrongful action of a third party.
Id. Ā¶Ā¶ 61-62. No. 09-1285, 2010 WL 419433 (W.D. Pa. Jan. 29, 2010) (unreported). Oregon Formal Op. 2011-186 (Revised 2015) (addressing the "Receipt of Documents Sent without Authority").
Where an attorney is in receipt of confidential documents, that attorney " has ethical obligations that may surpass the limitations implicated by the [...] privilege and may apply regardless of whether the documents in question retain their privileged status." Burt Hill, Inc. v. Hassan, 2010 WL 419433, at *4 (W.D.Pa. Jan. 29, 2010) (Bissoon, J.) (citing Herman Goldner Co., Inc. v. Cimco Lewis Indus., 58 Pa. D. & C.4th 173, 2002 WL 188733 (Pa.Comm.Pl. 2002)). Under Rule 4.4(b) of the Pennsylvania Rules of Professional Conduct and the ABA's Model Rule 4.4(b) on which it is based, " [a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender
The factors concerning the number and extent of disclosures typically relate to disclosures in the context of a document production and also have little relevance here. See Burt Hill, Inc. v. Hassan, No. 09ā1285, 2010 WL 419433, at *4 n. 4 (W.D.Pa. Jan. 29, 2010). While an attorney's inadvertent disclosure of an isolated document may increase the disclosing party's burden to protect that document, see Sampson Fire Sales, Inc. v. Oaks, 201 F.R.D. 351, 360ā61 (M.D.Pa.2001), this case involves an accidental disclosure by an employee of the District rather than by counsel.
The Court rejects Vocera's arguments. In deciding whether plaintiffs may use internal documents wrongfully obtained from a defendant in civil cases, the courts have considered various factors: impropriety of counsel's conduct in obtaining the documents (courts have disallowed use of documents where counsel were not forthcoming about how the documents were obtained or where counsel circumvented the discovery process, e.g.,Burt Hill v. Hassan , 2010 WL 419433 (W.D.Pa. Jan. 29, 2010); In re Shell Oil Company, 143 F.R.D. 105 (E.D.La.1992) ); the incentives and disincentives to employees to wrongfully taking documents (courts have disallowed use of documents that employees wrongfully took to benefit their own suits and have declined to immunize employees from liability for doing so, e.g.,Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319 (S.D.N.Y.1997) ; JDS Uniphase Corp. v. Jennings, 473 F.Supp. 697 (E.D.Va.2007) )); the prejudice to the opposing party (courts have declined to exclude use of improperly taken documents, only ordering their return, where the documents likely would have been produced through discovery, e.g.,Ashman v. Solectron, Corp., No. Cā08ā1430 JF, 2008 WL 5071101 (N.D.Cal. Dec. 1, 2008) ); the court's imperative to pursue truth in resolving a dispute (courts have declined to suppress use of improperly taken documents, in light of the interest in pursuing truth, served by considering all relevant evidence, e.g.,Lahr v. Fulbright & Jaworski, 1996
The Court rejects Vocera's arguments. In deciding whether plaintiffs may use internal documents wrongfully obtained from a defendant in civil cases, the courts have considered various factors: impropriety of counsel's conduct in obtaining the documents (courts have disallowed use of documents where counsel were not forthcoming about how the documents were obtained or where counsel circumvented the discovery process, e.g.,Burt Hill v. Hassan, 2010 WL 419433 (W.D.Pa. Jan. 29, 2010); In re Shell Oil Company, 143 F.R.D. 105 (E.D.La.1992)); the incentives and disincentives to employees to wrongfully taking documents (courts have disallowed use of documents that employees wrongfully took to benefit their own suits and have declined to immunize employees from liability for doing so, e.g.,Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319 (S.D.N.Y.1997); JDS Uniphase Corp. v. Jennings, 473 F.Supp. 697 (E.D.Va.2007))); the prejudice to the opposing party (courts have declined to exclude use of improperly taken documents, only ordering their return, where the documents likely would have been produced through discovery, e.g.,Ashman v. Solectron, Corp., No. Cā08ā1430 JF, 2008 WL 5071101 (N.D.Cal. Dec. 1, 2008)); the court's imperative to pursue truth in resolving a dispute (courts have declined to suppress use of improperly taken documents, in light of the interest in pursuing truth, served by considering all relevant evidence, e.g.,Lahr v. Fulbright & Jaworski, 1996 WL
Where an attorney is in receipt of confidential documents, that attorney "has ethical obligations that may surpass the limitations implicated by the attorney-client privilege and may apply regardless of whether the documents in question retain their privileged status." Burt Hill, Inc. v. Hassan, 2010 WL 419433, at *4 (W.D. Pa. Jan. 29, 2010) (Bissoon, M.J.) (citing Herman Goldner Co., Inc. v. Cimco Lewis Indus., 2002 WL 188733 (Pa. Comm. Pl. Jul. 19, 2002)). Under Rule 4.4(b) of the Pennsylvania Rules of Professional Conduct and the ABA's Model Rule 4.
However, as defendants point out, a massive production of documents is not necessarily a "document dump" if the opposing party has posed overbroad discovery requests. See Burt Hill, Inc. v. Hassan, No. Civ. 09-1285, 2010 WL 419433, at *8 n. 10 (W.D. Pa. Jan. 29, 2010) (where plaintiff's computer servers contained in excess of two terabytes of information, approximately one million files, over an eighteen month period, plaintiff's production of 14,000 responsive documents cannot be characterized as a "document dump" if "this is exactly what [defendants'] overbroad discovery request contemplates."); CBT Flint Partners, LLC v. Return Path, Inc., No. 1:07-CV-1822-TWT, 2008 WL 4441920, at *1-3 (N.D. Ga. Aug. 7, 2008) (plaintiff's emergency motion to compel was denied where plaintiff made no effort to meet-and-confer first with defendants or identify specific categories of documents, so that defendants' search of 102 search terms selected by plaintiff generated 1.4 million documents). As the Sedona Conference recognized last year, cooperation between counsel regarding the production of electronically stored information ["ESI"] "allows the parties to save money, maintain greater control over the dispersal of information, maintain goodwill with courts, a