About a week ago, many news outlets reported on the seemingly inadvertent disclosure of Alex Jones’ entire phone records and data in a defamation case against him. Having litigated personal injury lawsuits for almost 18 years, I have had this happen many times (thankfully I’ve been on the receiving end, rather than the other way around). Here’s what my research showed was required in these situations.
First, the Missouri Rules of Professional Conduct state, “If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures.”Mo. R. Prof. Cond. 4-4.4, Comment 2 (2021). The first step, then, is for the lawyer receiving the information to determine whether it was sent inadvertently. This is usually answered by the question, “Did you ask for it?” If not, then the disclosure was probably inadvertent, and you have to promptly notify the sender.
Second, the lawyer must decide if the information is privileged, like medical records or lawyer-client communication. If it is privileged information, the rules say the lawyer “shall not read the information or, if he or she has begun to do so, shall stop reading it. The receiving attorney shall promptly notify the sending attorney of such receipt; promptly return the information to the sending attorney; sequester, delete, or destroy the information and any copies thereof; and take reasonable measures to assure that the information is inaccessible.” Mo. R. Civ. P. 56.01(b)(9)(a)(ii) (2021).
If the inadvertent disclosure did not contain privileged information, and the sending lawyer does not request the information back, then you are free to do with it as you please.
This is just a brief overview of what to do in the situation of an inadvertent disclosure of information in a Missouri personal injury lawsuit. Our law firm stands ready to answer your questions. Contact us for more information.