Triggering the Duty

Rule 4.4(b) does not reach every lawyer who happens to hold someone else’s paper. It applies to a lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and who knows or reasonably should know that the item was inadvertently sent, and it tells that lawyer to promptly notify the sender.¹ The sentence works as a conditional. Notification is the consequence, and three conditions must hold before it follows: the item must be one the rule covers, it must have arrived by mistake, and the recipient must know, or reasonably should know, of the mistake.

The third condition makes the duty conditional rather than automatic. Lawyers receive documents from other lawyers every day, and nearly all of them are sent on purpose, so receipt alone says nothing about whether anyone erred. A rule that demanded notice for every delivery would bury senders in confirmations of transmissions they intended. A rule that demanded notice whenever a mistake had occurred, even one the recipient could not see, would require a lawyer to report what looked like an ordinary, deliberate transmission. Tying the duty to the recipient’s knowledge avoids both problems, because a lawyer can act on a mistake only if the lawyer can recognize it.

The phrase “reasonably should know” supplies the other half of that design. If the duty turned only on what a lawyer admitted to knowing, a recipient could escape it by declining to notice the obvious, such as a salutation to the adversary’s general counsel or a cover line saying the message was meant for someone else. The objective alternative closes that gap by asking what a reasonable lawyer in the recipient’s position would have recognized.

The three conditions are cumulative. If any one is missing, Rule 4.4(b) imposes no notification duty, although other law, taken up later in this chapter, may still govern what the lawyer does with the item. The first question is which items the rule covers at all.

Document or ESI Covered

Rule 4.4(b) protects a category of material, and the rule’s own words fix it: “a document or electronically stored information relating to the representation of the lawyer’s client.”² Those words set two limits, one of form and one of connection. The provision sits inside Rule 4.4, titled Respect for the Rights of Third Persons.³ The sender of a mistaken transmission is such a third person: someone who is not the recipient’s client and whose confidences may now sit with the other side.

On form, the rule covers paper and electronic material alike. The amendment added the words “or ESI” to the text of the rule, and Comment 2 explains the reach. “Document or ESI” includes, in addition to paper documents, email and other forms of ESI, including embedded data (commonly called metadata), that is subject to being read or put into readable form.⁴ The readability condition ties coverage to what the recipient can actually see. Data the recipient can open, or can convert into something the recipient can open, falls within the rule.

Metadata deserves a flag, because its place in the definition is easy to misread. Placing embedded data inside “document or ESI” means only that metadata can be the subject of the rule. Comment 2 then adds that metadata creates an obligation only if the receiving lawyer knows or reasonably should know that it was inadvertently sent to the receiving lawyer.⁵ A lawyer who receives a file the sender meant to send, with tracked changes still embedded, therefore has no notification duty merely because hidden data is present. The commentary does not resolve whether a lawyer may look at metadata that was inadvertently produced, and the last part of this chapter takes up that controversy.⁶

The second limit is connection to the representation of the recipient’s own client. The text confines the rule to items relating to that representation, so a mistaken message about someone else’s matter falls outside it. The limit makes practical sense: an item about the recipient’s own matter is one the recipient could use in the representation, while an unrelated invoice gives the recipient nothing to use.

The two emails arrived the same way, and both were mistakes. What separates them is the connection to the recipient’s client’s matter, and the rule’s text demands that connection. Two errors are common on an exam: treating any misdirected message as covered, and treating the rule as limited to paper documents.

Inadvertently Sent

Rule 4.4(b) applies only when the document or ESI “was inadvertently sent,” so the second condition asks how the item reached the recipient.⁸ The commentary defines the term: “A document or ESI is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or ESI is accidentally included with information that was intentionally transmitted.”⁹ The definition describes two shapes of mistake. In the first, the right content goes to the wrong destination, as when an email lands in the inbox of a stranger with a similar name. In the second, the destination is right and the contents are wrong, because something was swept in along with material the sender meant to deliver.

Both shapes share one feature: the sender never intended the recipient to have that item, and the recipient did nothing to bring it about. The only error in the transaction is the sender’s, and the sender cannot repair an error it does not know about. Notice lets the sender act. In discovery, for example, once the other side calls to claim privilege, Rule 26(b)(5)(B) requires the receiving party “to take reasonable steps to retrieve the information if the party disclosed it before being notified.”¹⁰ The burden the notification rule places on an innocent recipient is small: tell the sender.

The word “inadvertently” marks the edge of the rule in two directions, and both edges matter on an exam. The first edge is the transmission the sender made on purpose. If opposing counsel emails a position paper intending it to be read, nothing was mistaken, so the rule has nothing to correct. A sender who later regrets the choice has made a bad decision, not an accident.

The second edge separates an innocent recipient from a lawyer who holds materials that no one sent by mistake. Documents taken from their owner without authority were not accidentally transmitted by anyone, so the definition does not describe them, and other law governs. One source points to the law of bailments, which generally imposes a constructive bailment when a party takes possession of property under circumstances in which the recipient knows that the property has been separated from its rightful owner.¹¹ Such a bailment entails at least a duty to return the property, which is more than notice.¹² The source reasons that the principle applies with as much or more force when a lawyer receives documents or electronic data that the lawyer has reason to know were stolen from another.¹³

The bailment reasoning explains why the exam answer for stolen or improperly obtained materials is never “give notice under 4.4(b) and stop.” The answer is that 4.4(b) does not govern and that other law decides what the lawyer must do.

Knows or Should Know

The third condition turns on the recipient’s own mind. Rule 4.4(b) applies to a lawyer who “knows or reasonably should know” that the document or ESI “was inadvertently sent.”¹⁵ The phrase joins two standards. Actual knowledge is satisfied when the lawyer in fact realizes the transmission was a mistake. The objective standard is satisfied when a reasonable lawyer in the recipient’s position would have realized it, whatever the particular lawyer admits to having noticed.

Each half does its own work. The knowledge half keeps the rule fair to a recipient with no reason to suspect an error: a duty to notify cannot sensibly bind someone who has no way of recognizing the mistake, and a document that looks like a routine, deliberate production gives that recipient nothing to report. The “reasonably should know” half protects the sender. A recipient who could escape the duty by declining to read the warning signs, such as a privilege legend, a confidentiality banner, or a salutation to someone on the other side, would defeat the rule. The objective standard asks what those signs would have told a reasonable lawyer, so a recipient who ignores a plain warning is treated as having read it.

Timing follows from the same wording. Because the rule attaches the duty to what the lawyer knows or reasonably should know, the duty begins at the moment the mistake becomes apparent, either because the lawyer sees it or because a reasonable lawyer would have.¹⁶ Before that moment the text asks nothing of the recipient, and from that moment it requires prompt notice.

Hypothetical Illustration

Opposing counsel’s production reaches Alvarez as a single set of several hundred pages. One page is an internal email in which a company manager discusses a sales forecast. It carries no privilege legend, no confidentiality banner, and no lawyer’s name, and it looks like every other page. Alvarez reads it in the ordinary course of review, with no reason to suspect that it does not belong, so the knowledge element is not met and nothing has been violated. Two days later, Alvarez reads the privilege log served with the production and finds an entry describing that very email as withheld. At that point Alvarez knows the item was inadvertently sent, and prompt notice to the sender is due. The earlier reading stays innocent, because the duty begins when the knowledge does and does not reach backward.

A recipient confronted with obvious warnings stands differently from Alvarez on first reading. Rico v. Mitsubishi Motors Corp. describes a prospective standard announced in an earlier California appellate decision, State Fund. When a lawyer receives materials that “obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged,” and “it is reasonably apparent that the materials were provided or made available through inadvertence,” the lawyer “should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender.”¹⁷ The parties may then resolve the situation by agreement or ask the court for guidance, with protective orders and other judicial intervention as may be justified.¹⁸

The State Fund standard is useful here as a picture of an obvious mistake, and it differs from Rule 4.4(b) in two ways. It is framed around materials that appear privileged or confidential, while 4.4(b) asks whether the lawyer knows or should know that the item was inadvertently sent. It also tells the recipient to refrain from examining the materials beyond what is essential, a direction that does not appear in the text of 4.4(b), which requires prompt notice. How other law can add duties of that kind is taken up later in this chapter. The objective half of the test shows in the standard’s own words, since it turns on what is “reasonably apparent.”

At the other end of the range, the objective test is unnecessary. A lawyer who opens an email beginning “Sorry, wrong recipient; this is for our client’s in-house counsel only” actually knows the transmission was a mistake, and the knowledge arrives with the first line. Between those poles sit the unmarked page that looks like everything else and the stamped page that looks like nothing else. The exam question is always which of them the facts describe, and when the recipient’s knowledge, actual or constructive, first arose.

The same logic governs embedded data. Comment 2 states that metadata in electronic documents creates an obligation under the rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent.¹⁹ Metadata falls within the definition of a document or ESI, but its presence in a file the sender meant to send says nothing about whether it was sent by mistake. Whether the recipient may go looking for such data is a separate and contested matter, taken up in the final part of this chapter.