In Popa v. Simpson, the California Court of Appeal addressed inadvertent production and privilege in a Dropbox discovery dispute, reversing an order disqualifying defense counsel after the plaintiff inadvertently produced a document containing Dropbox links and passwords to case-related files. Although the plaintiff later argued the document was a privileged communication to her attorney, the court found it was not clearly addressed to counsel, lacked obvious indicia of privilege, and primarily described categories of discoverable documents. Because the document was not obviously privileged, defense counsel had no ethical duty to stop reviewing it or immediately notify opposing counsel under California’s inadvertent production standard.

The court also rejected the argument that the name of the Dropbox folder, “marc lazo files,” was sufficient to place defense counsel on notice that the materials were privileged. Instead, the court concluded that the folder name alone did not make it reasonably apparent that the production was inadvertent or that the contents were protected. The documents within the Dropbox folder consisted primarily of non-privileged, highly relevant evidence, including text messages, financial records, medical records, and a handwritten letter that directly contradicted portions of the plaintiff’s allegations.

Even assuming defense counsel had a duty to notify opposing counsel, the appellate court found disqualification was an inappropriate remedy because counsel did not gain an unfair advantage through the use of privileged information. Rather, the challenged evidence consisted of discoverable, non-privileged materials that were relevant to the merits of the case and important for impeachment. The court emphasized that attorney disqualification is intended to prevent unfair prejudice, not to punish counsel, and that excluding relevant, discoverable evidence would undermine the truth-seeking function of litigation.

For eDiscovery practitioners, the decision highlights the distinction between inadvertently produced privileged communications and inadvertently produced discoverable information. Not every mistaken production triggers an obligation to cease review, and courts will closely examine whether the materials were objectively identifiable as privileged and whether their use created an unfair litigation advantage. The ruling reinforces the importance of defensible privilege review, careful production quality control, and clear labeling of privileged communications before production.

Reach out to Chris Puente, Director of Operations at CODISCOVR. With more than 25 years of big law experience, Chris leads our eDiscovery delivery team and partners closely with legal teams and clients to develop defensible discovery strategies, implement best-practice workflows and quality controls, and manage complex matters across the full EDRM, from preservation and collection through review and production.