Suburban Sew 'n Sweep, Inc. v. Swiss-Bernina, Inc.

United States District Court · Evidence

EvidenceAttorney-client privilegeDiscoveryattorney-client privilegeconfidentialitywaivertrashdiscarded documents

Facts

Plaintiffs, retail sellers of defendants' products, suspected antitrust violations and for more than two years searched a trash dumpster used only by Swiss-Bernina, recovering hundreds of relevant documents. Among them were handwritten drafts of confidential letters from Swiss-Bernina's president to corporate counsel; after mailing the letters, the drafts were placed in office waste baskets, moved to a large trash container, and then to the dumpster. It was undisputed that defendants expected those attorney communications to remain confidential and that the documents would otherwise have been privileged if plaintiffs had not found them. Plaintiffs later served interrogatories seeking information about documents recovered from the trash, and defendants refused to provide further information about four documents on privilege grounds.

Issue

Whether documents recovered by a third party from a company's trash dumpster may be excluded from use in civil discovery and litigation, and specifically whether attorney-client communications lose privileged status when discarded in trash. More particularly, the question is whether defendants took sufficient precautions to preserve confidentiality so that the attorney-client privilege still applied.

Rule

In a federal-question case, attorney-client privilege is governed by federal common-law principles and is strictly construed. The relevant inquiry is whether the client intended to maintain confidentiality as manifested by the precautions taken; when parties do not take reasonable steps to insure and maintain confidentiality, the privilege does not apply or is vitiated. Discarding attorney-client documents in trash, when the parties could instead destroy or render them unintelligible, is not enough precaution to preserve the privilege. Nonprivileged documents obtained from trash are not subject to a judicially created exclusionary rule in these circumstances merely because private actors may have acted tortiously or wrongfully.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Mesa Toolworks' chief executive handwrites notes for a confidential letter to company counsel about pending federal antitrust exposure. After mailing the final letter, she tosses the handwritten notes intact into an office trash bin; janitorial staff move the contents to the company's outdoor dumpster, where a private competitor retrieves them and seeks discovery based on them in federal court.

Are the handwritten notes most likely protected by the attorney-client privilege?

Explanation. The controlling inquiry is whether the client intended to maintain confidentiality as shown by the precautions taken. The majority held that privilege is not automatically destroyed by every breach, but it is vitiated when the holder does not take reasonable steps to insure and maintain confidentiality. Throwing intact attorney-client drafts into trash, when they could have been destroyed or rendered unintelligible, is insufficient. The rule is not that all trash is automatically unprivileged, nor that only intentional waiver counts. (Derived from Suburban Sew 'n Sweep, Inc. v. Swiss-Bernina, Inc. (n.d.).)