For instance, there was a president of an Illinois company who composed letters to his lawyers. The letters ordinarily would not have been disclosed to third parties under the doctrine of attorney-client privilege. However, he threw the handwritten drafts into the garbage, which ultimately ended up in unsecured dumpsters outside the building. His company was under litigation at the time, and the other party sent people to look through the trash. When the company’s lawyers discovered the breach, they turned to the court to have the papers returned. The pre-trial federal magistrate ordered the plaintiffs to return the documents, but the presiding district judge overturned his ruling, "finding that the company had indirectly waived its attorney –client privilege by failing to safeguard protected material." [Suburban Sew ‘N Sweep Inc. v. Swiss-Bernina Inc., 91 (N.D. Ill. 1981)]

In another instance, a Maryland federal district court ruled that a party who had ripped up into 16 pieces sensitive documents before throwing them out "showed an intention to keep the items confidential, and ordered them returned." [McCafferty’s Inc. v. Bank of Glen Burnie, 79 F.R.D. 163 (D.Md. 1998)]

The article stresses that companies cannot rely on ordinary trash collection to protect their secrets, particularly law firms which handle confidential materials on behalf of their clients. It is recommended that law firms not rely on ordinary trash collection to protect client secrets, and that they should "routinely shred sensitive material, and advise clients to do the same."

For further information, call Bill Wolpin at 770-618-0112.

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