When Privilege Slips: Inadvertent Disclosure and the Consequences for Counsel
Even the most careful lawyers can make mistakes during discovery. One of the most serious is the inadvertent disclosure of privileged or work-product material. When that happens, the consequences can be severe, including waiver of privilege, discovery sanctions, ethical violations, and the loss of client trust.
An inadvertent disclosure happens when a party accidentally produces a document protected by the attorney-client privilege or the work-product doctrine. Once this occurs, both sides have immediate duties. The receiving attorney must stop reviewing the document and promptly notify the sender, while the producing attorney must act quickly to “claw back” the material, identify it as privileged, and ask that it be returned or destroyed. Under Washington’s rules, the receiving party must comply and confirm that the material has been deleted or sequestered. Failing to follow these steps can result in a waiver of privilege or a breach of ethical duties.
Three sets of rules govern this area. Evidence Rule 502(b) prevents waiver if the disclosure was inadvertent and if reasonable steps were taken to both prevent and correct it. Civil Rule 26(b)(6) outlines the process for asserting privilege and requires the recipient to return, sequester, or destroy the document until the claim is resolved. Rule of Professional Conduct 4.4(b) requires a lawyer who knows or should know that a privileged document was inadvertently sent to promptly notify the sender. Together, these rules emphasize prevention, prompt action, and professionalism.
Courts look at the totality of the circumstances when deciding if a disclosure was truly inadvertent. Judges consider:
- What measures counsel used to prevent disclosure (e.g., technology, staff training).
- How fast they acted once the error was discovered.
- Whether a proper privilege log was maintained.
Without proof of reasonable precautions and prompt correction, privilege can be lost, that means delays are costly. In Sitterson v. Evergreen Sch. Dist. No. 114, 147 Wn. App. 576 (2008), the court found that waiting even a few weeks was too long and supported a finding of waiver.
Receiving counsel has their own duties. If a document appears to be privileged, they must stop reading it, avoid copying or sharing it, and notify the sender right away. The document should be secured until both sides agree on next steps. Failure to act can violate RPC 4.4(b) and RPC 8.4(d), which prohibits conduct prejudicial to the administration of justice.
Privilege logs are another essential safeguard. A log that identifies each document’s author, recipients, date, and general subject matter shows diligence and helps the court assess privilege claims without revealing the substance of communications. The process of creating a detailed privilege also forces the producing party to review the materials considered for production. Failing to create a privilege log can make it more difficult to demonstrate or prove that reasonable steps were taken to prevent disclosure.
A claim of privilege is a powerful tool that can shield significant documents and communications. However, all privileges must be actively guarded. Here, at Beresford Booth, we combine robust technology, meticulous and diligent document review, and clear protocols to minimize the risk of inadvertent disclosures. Courts reward diligence, transparency, and prompt action. When accidents happen, how quickly and responsibly counsel responds are paramount to protecting claims of privilege. We build these safeguards into every case.
If you have questions about privilege, discovery obligations, or inadvertent disclosure issues, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.