Jones` lawyers accidentally sent the entire contents of Jones` cell phone to the parents` lawyers. Some of the messages should have been delivered in response to parents` inquiries. Other content should have been protected and preserved between him and his lawyers via professional secrecy. In any case, the parents` lawyers are allowed to retain and use all messages. Illinois` federal and federal versions of Rule 502 differ with respect to other types of disputes, each of which is expressly applicable. The federal version expressly applies in arbitration proceedings affiliated with the Federal Court and ordered by the Federal Court, but not in proceedings of the federal authority. The Illinois version expressly applies to Illinois agency proceedings, but not to arbitration. Unlike Illinois state courts, Texas gives the producing party ten days to respond to a notice of accidental disclosure that the privilege is deemed revoked. In addition, each state has its own ethical rules.
Illinois Rules of Professional Conduct 4.4, adopted in January 2013, states: “An attorney who receives a document or electronically stored information about attorney`s attorney`s representation and knows that the electronically stored document or information was sent in error must promptly notify the sender.” The new Illinois rules are helpful in clarifying the procedure for handling accidental disclosures and their implications for Illinois procedures. However, to the extent that Illinois Rule 502 purports to be binding in other state or federal proceedings, practitioners should be cautious. Until review, the extrajudicial effect of orders under Illinois` Rule of Evidence 502 and other similar state regulations remains unclear, particularly in federal proceedings. If the Jones trial took place in Illinois, Jones` lawyer only had to inform the parents` attorney that the texts provided contained privileged communication between attorney and client and unresponsive confidential information. But, as the plaintiffs` attorney argued in Texas state court, the defense attorney took no steps to identify himself as privileged or protect him in any way, even after the plaintiffs` attorney informed the defense of their error. Jones` defense attorney responded to an email from the plaintiffs` lawyer, saying there had been an error in the file transfer and that the link containing the contents of Jones` phone had been ignored. But the answer came 12 days after the accidental production. There was also no objection from Jones` lawyer during the statement.
Counsel for the plaintiffs correctly argued that simply stating an “error” and asking plaintiffs to “ignore the connection” is not enough to prevent a waiver in Texas state court, which created the ten-day response time for notice of accidental disclosure. An Illinois state court, on the other hand, appears to be less protective of lawyers from the consequences of an accidental waiver without a fixed response period. Supreme Court Rule 201, entitled “General Discovery Provisions”, has been amended to add a paragraph (p) dealing with claims of privilege or the results of work after disclosure in discovery. Supreme Court Rule 201(p) states: Illinois Supreme Court Rule 201, entitled “General Discovery Provisions,” deals with claims of privilege or work results after disclosure on discovery. Rule 201(p) states that if information was inadvertently provided at the time of discovery and is the subject of a claim for lien or protection of the work product, the party making the request may notify any party who received the information of the claim and the basis of the claim. Upon notice, each receiving party must return or destroy the information provided and may not use or disclose the information until the claim is resolved. Lawyers sometimes make mistakes when it comes to eDiscovery. Big surprise! Avocados are not perfect! But failure to take steps to correct the errors in time made a crucial mistake for Jones` lawyer, with the end result that the text messages — which could presumably have been considered privileged — were all admissible in court against Jones.
This is an example of how handling ESIs (electronically stored information) is an essential part of litigation and lawyers need to be aware of the unique issues associated with ESI. Illinois Rule of Evidence 502, entitled “Attorney Client Privilege and Work Product: Limitations on Waiver,” contains the language and structure of Federal Rule of Evidence 502. Illinois joins Arizona, Indiana, Iowa and Washington in adopting paragraph (d) of the federal rule to protect disclosure under a court order from waiver in any subsequent proceeding. For an overview of Federal Rule 502, click here to see our previous warning. The Illinois Supreme Court passed an amendment to Supreme Court Rule 201 and added Rule 502 to the Illinois Rules of Evidence. The two new rules deal with the accidental disclosure of protected documents in litigation or other government proceedings and came into force on January 1, 2013. If information inadvertently generated at the time of discovery is the subject of a claim of privilege or protection of work products, the party making the claim may notify any party who received the information of the claim and the basis of the claim. Upon notification, each receiving party shall immediately return, seize or destroy the information and copies provided; will not use or disclose the information until the claim is resolved; take reasonable steps to retrieve the information if the receiving party disclosed it to a third party prior to the notification; and may immediately submit the information to the sealed court for adjudication on the application. The producing party must also retain the information until the complaint is resolved. Illinois` 502(b) Rule of Evidence provides that a lien will not be waived if: The Illinois State Court would have followed the above guidelines of Federal Rule of Evidence 502 and Rule 201(p) of the Illinois Supreme Court. The plaintiffs` counsel advised defense counsel of the possible error in accordance with ethical guidelines. However, defence counsel did not respond promptly and demanded the return of the messages and did not object at the time of cross-examination of the information.
Thus, the plaintiff`s lawyers would be able to use all the messages if this case had been filed in the Illinois state court. The full text of Illinois Supreme Court Rule 201 can be found here. In 2013, the Illinois Supreme Court passed an amendment to Supreme Court Rule 201 and added Rule 502 to the Illinois Rules of Evidence, which applies to the “accidental disclosure” of evidence. This rule is similar to Rule 502 of the Federal Rules of Evidence. If this were to happen in Illinois, what would be the outcome under the Illinois Rules of Civil Procedure? .