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What Should a California Lawyer Do With An Inadvertently Produced Privileged Document?

2/6/20

By: Greg Fayard

Sometimes privileged documents are accidentally produced to opposing counsel. Usually, this occurs in a document production in a lawsuit where, buried in the documents, is a communication between a lawyer and client that is clearly privileged and confidential. What should the lawyer do? In California, a new Rule of Professional Conduct 4.4 codifies case law on this issue and is based on common sense.
When it is reasonably apparent that the lawyer has received a privileged document (or attorney work product, like case strategy notes) then the lawyer is to:

1. Stop examining the document;
2. Notify opposing counsel or the sender of the privileged document; and
3. Return it

After that, the lawyer should seek to reach an agreement with the sender over the writing’s future use in the matter. If the opposing sides cannot come to an agreement, they should seek guidance from the court or tribunal.
If you have any questions or would like more information, please contact Greg Fayard at gfayard@fmglaw.com, or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.