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Oops! What to Do When Privileged Material Is Inadvertently Produced

In the rush of document production, it’s always possible that privileged material will be inadvertently produced to the opposing party. What happens then? Is the privilege lost?

The short answer is that the privilege is not lost. Under California law, inadvertent disclosure is not waiver. See Evid C §912; State Compensation Ins. Fund v WPS, Inc. (1999) 70 CA4th 644, 654 (“‘waiver’ does not include accidental, inadvertent disclosure of privileged information by the attorney”).

One court illustrated the situation well by explaining that inadvertent disclosure doesn’t show a voluntary consent to disclosure, but rather demonstrates that a “poor paralegal or junior associate who was lumbered with the tedious job of going through voluminous files and records in preparation for a document production may have missed something.” O’Mary v Mitsubishi Electronics Am., Inc. (1997) 59 CA4th 563, 577.

So what should you do when this mishap happens to you?

  1. Attempt rapid recovery. Attempt to recover the materials immediately on discovering the inadvertent disclosure. And make certain to identify and attempt to recover all copies. For electronically stored information (ESI), notify the receiving party of the privilege claim and its basis—the receiving party must then sequester the information and either return it or present the information conditionally under seal to the court for a determination of the claim. CCP §2031.285.
  2. If necessary, seek court relief. If efforts at recovery from opposing counsel fail, seek immediate relief from the court. Provide the court with a declaration specifying which documents are protected (under seal if necessary), the due diligence and procedures used to protect against inadvertent disclosure, and how the documents came to be inadvertently disclosed. If ESI is involved, an information technology person should explain the measures that you took to protect against inadvertent disclosure and the unanticipated nature of the breakdown in those measures.

What about when you’re on the receiving end of apparently privileged material? Immediately notify opposing counsel and try to resolve the situation. Not only is this the right thing to do, but not doing so could have major repercussions. In Rico v Mitsubishi Motors Corp. (2007) 42 C4th 807, 817, the court affirmed the disqualification of plaintiffs’ counsel who read and made full use of inadvertently obtained privileged document.

Because we all know this could happen to anyone, consider taking a proactive approach: Enter into a stipulation with opposing counsel about possible inadvertent disclosure before discovery starts. The stipulation could provide, for example, that inadvertent or mistaken disclosure of confidential information doesn’t constitute a waiver of any claim of confidentiality if, within a certain designated time period, the producing party notifies the receiving party of the inadvertent or mistaken disclosure and sends the recipient properly redesignated documents.

Learn how to evaluate privileges and other protections in CEB’s California Civil Discovery Practice, chap 3. And to learn more about production demands generally, check out chap 8 of that book.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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