November 01, 2012 Tort Trial and Insurance Practice

Inadvertent Disclosure of Privileged Information

John W. Allen

This article describes the various rules and ethical opinions that govern inadvertent disclosures of privileged information, reiterates the importance of maintaining the attorney-client privilege, touches on some scenarios where sanctions may well occur, and suggests procedures to both comply with the rules and to protect the privilege to which every client—yours and your opponent’s—is entitled.

The federal and state rules. The Federal Rules of Civil Procedure and many state court rules have adopted a nearly identical procedure for handling inadvertent disclosures of privileged information. At both the state and federal level, if information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim must notify any party that received the information of the claim and the basis for it. After being notified, a party is promptly to return, sequester, or destroy the specified information and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

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