Courts everywhere have dealt with the waiver effect of a party’s inadvertent disclosure of privileged documents during a document production. Most courts take a fact-intensive approach, examining such factors as the process established to avoid disclosure, the number of documents that slipped through, how quickly the party sought their return, etc. In some states, ethics also plays a part.
In Galison v. Greenberg, 5 Misc. 3d 1025A (N.Y. Sup. Ct. 2004), defendant’s lawyer accidentally attached a privileged document to a pleading. The defendant sought entry of a protective order preventing plaintiffs from using the privileged document. The court pointed to New York ethics authority requiring lawyers to return or destroy inadvertently received privileged documents. The court granted the protective order (although denying defendant’s motion to disqualify plaintiffs’ lawyer).
Although not all states recognize this strong an ethical duty, it can trump the normal waiver analysis in some states.