Putting the Cat Back in the Bag

During discovery, when parties might hand over the equivalent of millions of pages, it's quite possible for a privileged document to be included unintentionally. If they send -- or receive privileged documents -- what should counsel do? Law Practice Today has an article -- Carl G. Roberts, The Attorney-Client Privilege and the Amended Federal Discovery Rules, Dec. 2006 -- that discusses the issue.

Fed. R. Civ. P. 26(b)(5)(B) provides:

If information is produced in discovery that 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 and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

That is, if you mistakenly turn over privileged material, notify the other party. (Oops!) And if you're on the team that got it, you have to do your best to get it back, destroy it, or whatever. If you aren't sure of the disclosing side's claim, you can ask the court to look it over.

The article discusses different types of privilege (attorney-client privilege is distinct from attorney work-product privilege, for instance).

The article discusses proposed Rule 502 of the Federal Rules of Evidence, which was published for comment in August 2006. Materials are linked from here. Comments are due Feb. 15, 2007. The text of the proposed rule (in case you're dying to read it):

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
(a) Scope of waiver. — In federal proceedings, the waiver by disclosure of an attorney-client privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information.

(b) Inadvertent disclosure. — A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver in a state or federal proceeding if the disclosure is inadvertent and is made in connection with federal litigation or federal administrative proceedings — and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B).

[( c ) Selective waiver. — In a federal or state proceeding, a disclosure of a communication or information covered by the attorney-client privilege or work product 22 protection — when made to a federal public office or agency in the exercise of its regulatory, investigative, or enforcement authority — does not operate as a waiver of the privilege or protection in favor of non-governmental persons or entities. The effect of disclosure to a state or local government agency, with respect to non-governmental persons or entities, is governed by applicable state law. Nothing in this rule limits or expands the authority of a government agency to disclose communications 30 or information to other government agencies or as otherwise authorized or required by law.]

(d) Controlling effect of court orders. — A federal court order that the attorney-client privilege or work product protection is not waived as a result of disclosure in connection with the litigation pending before the court governs all persons or entities in all state or federal proceedings, whether or not they were parties to the matter before the court, if the order incorporates the agreement of the parties before the court.

(e) Controlling effect of party agreements. — An agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement, but not on other parties unless the agreement is incorporated into a court order.

(f) Included privilege and protection. — As used in this rule:
(1) “attorney-client privilege” means the protection provided for confidential attorney-client communications, under applicable law; and
(2) “work product protection” means the protection for materials prepared in anticipation of litigation or for trial, under applicable law.

(c) is in brackets because the committee is seeking comments but hasn't taken a position yet.