Ride the Lightning

Beware of Waiving Privilege When You Have Open Link Files in a File Sharing Site

March 7, 2017

The lesson of the post title was hammered home recently when a magistrate judge in Virginia ruled that an insurance company waived any claim of privilege to materials uploaded to a file sharing site (Box) without a password. As The ABA Journal reported, magistrate judge Panela Meade's February 9^th decision found that the Harleysville Insurance Co. waived its privilege in documents uploaded to a site where they were accessible to anyone who had the hyperlink.

"In essence," Sargent wrote, "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 imagine an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web. "The decision "should make lawyers think twice before putting confidential documents in a file-sharing site without password protection."

Harleysville was not the only litigant criticized in the opinion. Its opponent also acted improperly, Sargent said, by accessing the materials and using them without notifying lawyers for Harleysville.

Read the whole opinion to get the facts, but it has long been true that lawyers use file sharing sites in a very insecure manner. Our own advice is to encrypt any files before placing them on a file-sharing site – this not only prevents the loss of privilege but means that the site's owners – even if they have a master decryption key (which most file sharing sites do) – cannot decrypt files you've encrypted before sharing them.

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