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Privileged Documents Sent to Expert Not Waived?

Because so many people are involved in the everyday step of sending records from a law office to an expert, the mistake of inadvertantly including privileged information occurs now and again.  Is it waiver?  Will the jury see it?

In Nan H. Mullins, D.M.D. v. Alice Tompkins (Benton, Webster and Roberts),  the unfortunate defense counsel faced this discovery catestrophe and it lead to an appeal.  In this case, the defense expert received a copy of defense counsel’s evaluation letter sent to the defendant and insurance company as well as emails between defendant and lawyer.handoff

The court held that the documents were ordinarily privileged and that mere accidental production does not automatically waive the privilege, see Fla.R.Civ.P. 1.280(b)(4)(B).  Since, here, the expert testified he never read nor relied upon them, there was no breach and no reason for disclosure (although we are curious how this was not caught during the expert’s review of what was sent to him and the lawyer’s pre-deposition conference).

The Panel further pointed out that even if it was discoverable, it may not be admissible to be paraded in front of the jury.

Can You Post a Video Deposition on YouTube?

The Internet has invigorated questions about depositions which has laid fairly dormant for years: who “owns” a deposition video or transcript?  Is it public record?

Ever considered posting a video deposition on YouTube?  Is that allowed?  A quick search suggests there’s more than two thousand video depos on YouTube.

We’re not impressed that these questions have been squarely answered but the Merrill Corporation has done a fairly tidy job summarizing the issue in their essay, “Is that Me on YouTube?  Ground Rules for Access, Use and Sharing of Digital Depositions.”

We won’t summarize Merrill’s work but add these thoughts:

1.  The Court likely does not “own” the deposition transcript/video but clearly has control over it.

2.  Filing the transcript/video in the court file makes it public record.  Filing it before using it elsewhere seems like a threshold step to avoid lengthy questions as to what is or is not public record.

3.  I’m not impressed with the idea the court reporter owns the transcript.  Again, there is little to no law on point but I think the requesting attorney hired the reporter for a job and gets the benefit of the work product.  I also mention that, under FRCP 30(f)(3), the reporter can be ordered who can get a copy.   That suggests the reporter plainly doesn’t own the transcript free and clear.

4.  The question of the right to distribute seems to come down to (a) is it filed with the court, (b) is there a danger of impairing law enforcement or judicial efficiency, (c) privacy interest of those resisting disclosure, and (d) nature/degree of injury to party if information is released.  Here in Florida, there is a trend towards more open invasive discovery and clamping down on the distribution of public record information seems counterculture to Florida legal theories and trends.

5.  Merrill notes some interesting potential privacy violations if the transcript includes HIPAA, drug, alcohol or mental health treatment.

6.  Merrill also casts a shadow over the practice of sharing expert deposition transcripts (for the reasons in #5) but cites no case or instance where that ultimately became a legal issue.

7.  Suggestions?  File the video or transcript with the court and, if you’re going to distribute on YouTube or elsewhere, consider distributing edited snipets.

How Should A Judge Instruct A Jury Not to Text, Twitter or Google?

Look no further than our brethren in Michigan, who hustled out a June 30, 2009 order providing the anti-Twittering jury instruction for trial judges.  The rule goes into effect in September.


No, it may not be required here in Florida yet, but isn’t it a good idea?  Why not offer to the judge for your next trial?

Would the other side actually disagree?

The rule is here.  The Detroit Free Press article is here.