In U.S.A. v. Cherokee Gen. Corp., No. 2:22-cv-00299-KKE, 2023 WL 7624807 (W.D. Wash. Nov. 14, 2023), the parties stipulated that the Court should enter a Protective Order saying that if the parties produced information during discovery that they later thought was privileged and so should not have been produced (perhaps reflecting a reasonable concern about notifying E&O or malpractice carriers), then the information should be treated as privileged and returned to the owner. The federal judge in this case agreed and entered the parties' Stipulated Protective Order in this regard: "Information produced in discovery that is protected as privileged or work product shall be immediately returned to the producing party." Cherokee General, 2023 WL 7624807, at *6.
So, if you forget to raise a privilege before production, stipulate with your opposing counsel that you did not have to raise the privilege. Perhaps a federal judge, a fellow lawyer, will look kindly upon you.
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