In the case of Harleysville Insurance Company v Holding Funeral Home, the Harleysville defense counsel (Defense Counsel) sent to the Holding Funeral Home Plaintiff Counsel (Plaintiff Counsel) certain documents on a thumb drive. Defense Counsel subsequently found out that it had inadvertently included some files on the thumb drive subject to attorney-client privilege and requested that Plaintiff Counsel delete those files. Plaintiff Counsel complied with this request.
Plaintiff Counsel later found that included on the thumb drive was a hyperlink to access an internet Box Set site. The Box set site contained Harleysville’s entire claims file that was unprotected with no passwords on the files. Defense Counsel after discovering the hyperlink, sought to prevent Plaintiff Counsel from using the information contained in the claims file. As Defense Counsel claimed that it was protected privileged work subject to attorney-client privilege that was inadvertently given to Plaintiff Counsel.
The court decided that since the internet site was accessible to anyone that could come across this site on the internet that no attorney client privilege existed. Here is a part of the court’s decision dealing with this matter:
“Based on these facts, I find that Harleysville has waived any claim of attorney-client privilege with regard to the information posted to the Box Site. It has conceded that the Box Site was not password protected and that the information uploaded to this site was available for viewing by anyone, anywhere who was connected to the internet and happened upon the site by use of the hyperlink or otherwise. In essence, Harleysville has conceded that its actions were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to image an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web.”
Hopefully Defense Counsel has good Attorney Malpractice Insurance.
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Harleysville Insurance Company v Holding Funeral Home