McCafferty's, Inc. v. Bank of Glen Burnie

United States District Court for the District of Maryland · 1998 · Evidence

179 F.R.D. 163 (D. Md. 1998)

Updated August 22, 2026

EvidenceAttorney-Client PrivilegeWaiverInadvertent Disclosureconfidentialityreasonable precautionsdiscarded documentsdumpster diving

Facts

BGB's attorney faxed a draft memorandum about a sexual harassment claim to BGB's human resources director, Rebecca Joyner, who reviewed it, revised it, and faxed it back to counsel. Joyner did not show the draft to anyone else and then tore it into 16 pieces and discarded it in her office trash can. Custodial staff placed the trash into a sealed plastic bag, which was later put into a dumpster located on BGB property and marked for BGB's exclusive use on a private employee parking lot. A private investigator employed by Mariner removed bags from the dumpster, sifted through them, and reconstructed the memorandum from the torn pieces.

Issue

Does a client waive the attorney-client privilege when an attorney-client memorandum is torn up, discarded in office trash, placed in a dumpster on private property, and later recovered and reconstructed by a third party? More specifically, did BGB fail to preserve confidentiality by taking insufficient precautions before discarding the memorandum?

Rule

The party asserting the attorney-client privilege bears the burden of showing that the privilege applies and was not waived. Under the intermediate approach recognized by the Fourth Circuit, inadvertent disclosure may waive the privilege when the holder fails to take reasonable steps to insure and maintain confidentiality; the key inquiry is whether the communication was intended to remain confidential and whether objectively reasonable precautions were taken to preserve that confidentiality. Discarding a privileged document does not automatically waive the privilege if the holder's actions show an intent to keep it confidential and reasonable precautions were taken before and during disposal.

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In Phoenix, attorney Lena Voss sent a legal strategy memorandum to her client, Orion Mesa Lending. Operations manager Carla Ruiz read it, tore it into many pieces, put the pieces in her office trash, and janitorial staff later sealed that trash in bags and placed them in a dumpster inside Orion's fenced employee lot with signs stating the dumpster was for Orion's exclusive use. A rival's investigator entered the lot at night, removed bags, and reconstructed the memo.

If Orion moves to compel return of the memorandum, how should the court most likely rule under the governing approach?

Explanation. Under the intermediate approach, the key questions are whether the holder intended the communication to remain confidential and whether objectively reasonable precautions were taken to maintain confidentiality. Tearing the memorandum into pieces, placing it in office trash, then in sealed bags, and finally in a private, marked dumpster on company property are reasonable precautions; the law does not require perfect precautions or anticipation that a third party will trespass, sift through trash, and reconstruct the document. Fourth Amendment abandonment concepts are not controlling. (Derived from McCafferty's, Inc. v. Bank of Glen Burnie (1998).)