A recent ruling by a federal magistrate judge held that uploading documents to a Dropbox site without password protection was akin to “leaving [them] in the public square,” which waived both the attorney-client privilege and work-product protections. The ruling is a reminder that in the age of electronic file sharing, attorneys and their clients must be conscious of the risks in unsecure file sharing.
All litigants and their counsel should take measures to ensure privileged documents and communications are only accessible by intended recipients, and be mindful of the level of security afforded by different methods of document sharing. Interestingly, the Court also sanctioned the opposing attorneys who discovered the materials but took no action to alert the other side. Despite finding any privileges had been waived, the Court held that their conduct in failing to notify the opposing side when they had reason to believe the documents may be privileged was improper.