In Montanans for Community Development v. Motl, No. CV 14-55-H-DLC (D. Mont. Mar. 10, 2016), the district court held that defendant’s disclosure of documents to plaintiff, MCD, for a preliminary review waived otherwise applicable privileges. The case involved a constitutional challenge to Montana’s election disclosure laws and the manner in which they have been enforced. MCD sought production of “watch files,” “phone logs,” and “investigative reports” prepared by employees of the Commissioner of Political Practices (“COPP”) in response to complaints alleging violations of Montana’s disclosure laws. In response to the document requests, COPP objected to producing the documents on attorney-client privilege and work product grounds. Without waiving its objections, COPP further stated that it would allow counsel for MCD to review the materials for a “modified in camera inspection,” during which MCD could inspect and identify what it wanted copied, and COPP would thereafter provide copies after redacting information that it deemed confidential, personal, or protected by the attorney-client privilege or the work product doctrine. Counsel for MCD made four trips to inspect the documents. During the inspections, although counsel was not allowed to take notes, counsel was never required to sign a non-disclosure or confidentiality agreement. When COPP produced the documents in redacted form, MCD moved to compel production in unredacted form, arguing that COPP had waived any privilege by disclosing the documents to MCD’s counsel. COPP responded that because it had made its objections clear in its written responses to discovery requests and at the time of the inspections, and MCD had not objected, MCD had entered into an informal confidentiality and privilege agreement. The court disagreed and held that, although COPP did not intend to waive privilege by allowing MCD to review the documents, the act of allowing the inspections to take place resulted in waiver by voluntary disclosure.
Register now for your free, tailored, daily legal newsfeed service.
Questions? Please contact email@example.comRegister
Granting Quick Peek Without a Non-Waiver Agreement Resulted in Waiver
Popular articles from this firm
If you would like to learn how Lexology can drive your content marketing strategy forward, please email firstname.lastname@example.org.
Related topic hubs
Director of Legal & Contractual Affairs
British Constructional Steelwork Assoc Ltd
"I have enjoyed receiving the Lexology newsfeeds over the last few months and in general find the articles of good quality and relevant. I like the fact that the email contains a short indication of the subject matter of the articles, which allows me to skim the newsfeed very quickly and decide which articles to read in more detail."