Domestic Diversions

Don’t send, don’t read?

The ABA Litigation Section updates us on developments related to disclosure of privileged materials.

Michael Yablonski writes (excerpt):
With little fanfare, the ABA has withdrawn a controversial 1992 ethics opinion requiring a lawyer who inadvertently receives privileged material from an opponent to refrain from reading the material, notify the sender of the error, and abide by the sender’s instructions. In the process, an unsettled area of the law that has troubled litigators for the past 14 years may have become even more unsettled and troublesome.
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Whether the inadvertent disclosure of a privileged document waives the privilege is an issue that varies widely from jurisdiction to jurisdiction. See, e.g. John T. Hundley, Annotation, Waiver of Evidentiary Privilege by Inadvertent Disclosure—State Law, 51 A.L.R.5th 603 (1997), and John T. Hundley, Annotation, Waiver of Evidentiary Privilege by Inadvertent Disclosure—Federal Law, 159 A.L.R. Fed 153 (2000).


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