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December 13, 2023

BE "REASONABLY PROMPT" TO GET BACK PRIVILEGED DOCUMENTS INADVERTENTLY PRODUCED ...

OR THE PRIVILEGE IS WAIVED.

Federal Rule of Evidence 502(b)(3) allows for the protection of inadvertently produced attorney-client or work product privileged information, such that it will not be admissible in a Federal Court proceeding.  It has been held that the disclosing party that is seeking to preserve the privilege must act "reasonably promptly" after the inadvertent production of privileged information, or the privilege is waived.  In re Actos Antitrust Litig., Master File No. 1:13-cv-09244 (RA) (SDA), 2023 WL 8358905, at *3 (S.D.N.Y. Nov. 28, 2023) (Aaron, USMJ).

A stipulated protective order that protects 'inadvertent disclosure' does not add anything to this equation.  The Court's Order in such a case, as in In re Actos, is based not on inadvertent disclosure but on whether or not the attempted protection/retrieval is "reasonably prompt."  In re Actos Antitrust Litig., 2023 WL 8358905, at *3 n.3.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

Posted by on December 13, 2023 at 09:16 AM |

Tags: #InadvertentlyProduced, #PrivilegeWaiver

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