Can’t unsee privileged documents, but still must handle properly

There’s a lot in the news about confidential information that finds its way into the wrong hands. We’ve seen it in group chats, unencrypted emails, and documents kept in garages and bathrooms. It happens a lot during litigation as well, and if handled improperly, there can be large consequences.

Mishandling an obviously privileged document?

Christian L. Johnson sued his employer, California Department of Transportation (Caltrans), based on claims arising out of his employment. His first amended complaint, filed in March 2019, alleged fifteen claims against Caltrans, including discrimination, harassment, and retaliation.

On January 10, 2022, the suit was pending, and trial was set for April 18, 2022. Caltrans attorney Paul Brown sent an email to Nicolas Duncan, who was Johnson’s supervisor at the time and not a named party in the litigation. The email contained a “CONFIDENTIALITY NOTICE” that stated:

This is a privileged attorney-client communication and/or is covered by the attorney work-product doctrine. It is for the sole use of the intended recipient(s). Any unauthorized review, use, disclosure, or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Do not print, copy or forward.