Privilege Waiver Through Use of Dropbox and Similar Services

On February 9, 2017, in Harleysville Ins. Co. v. Holding Funeral Home, Inc., a federal court in Virginia found that a party waived the attorney-client privilege and work product protection when the party put privileged documents on a non-password-protected document-sharing site on the Internet. The plaintiff, an insurance company, had shared a claim file with its investigator and with its counsel through an online file-sharing service. In document production, the insurance company produced an email containing a confidentiality notice that had been sent to the investigator, revealing the URL of the claim file. Opposing counsel then downloaded the claim file using the URL, accessing privileged documents. The court held that the insurance company had failed to take reasonable measures to protect the confidentiality of the material, as the claim file could be accessed through the URL without a password, and thereby had waived attorney-client and work product protection. The court also sanctioned defense counsel for accessing documents that he knew were not meant to be shared with him, but did not disqualify the firm because the now unprivileged documents would be available to new counsel. The case is a useful reminder that consideration should be given to ensuring documents are secure both for confidentiality and privilege reasons.