July 6, 2023

‘Do They Know They Produced That?’ Legal, Ethical, and Practical Aspects of Inadvertent Disclosures

Written By

Shannon “A.J.” Singleton
Member, Stoll Keenon Ogden PLLC

Countless lawyers have inadvertently sent or received something that they know was not meant for the recipient. Sometimes the issue arises in a random email on which counsel was accidentally copied. Other times it takes the form of a document that should have been withheld as privileged, yet is a Bates-stamped part of the opposition’s production. These inadvertent disclosures create legal and ethical issues for both sender and recipient, who should be familiar with the governing rules and employ strategies for minimizing future risk.

The Legal Side of Inadvertent Disclosures

“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”

Another well-recognized protection, the work-product doctrine, states “[a]t its core…shelters the mental processes of the attorney, providing a privileged area within which he [or she] can analyze and prepare [the] client’s case.” U.S. v. Nobles, 422 U.S. 225, 238 (1975). Recognizing the importance of these privileges, counsel guard against disclosing protected information. Despite best efforts, however, privileged documents may be inadvertently disclosed during discovery. When that occurs in a federal court proceeding, Federal Rule of Civil Procedure (FRCP) 26(b)(5)(B) guides the next steps, stating: “If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.”


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