Litigators are supposed to take advantage of the adversary’s mistakes. If the other side’s lawyer overlooks an affirmative defense, you don’t remind her. But there is at least one inexplicable exception: the adversary’s inadvertent production of a privileged document.
In All About Equine Animal Rescue Inc. v. Byrd, plaintiff accidentally produced several privileged documents. No. C102970, 2026 Cal. App. Unpub. LEXIS 2901 (Cal. Ct. App. Apr. 28, 2026), petition for review filed, No. S296628 (Cal. June 5, 2026). Under California case law, the recipient must “notify the sender” and “resolve the situation by agreement or may resort to the court for guidance.” Id. at *12. One of defendant’s lawyers returned the documents and promised to “permanently delete the identified files from [its] system.” Id. at *3. But defendant’s other lawyer retained them and later used their content in a deposition. The court disqualified him.
This scenario has confounded bars everywhere. Over the course of 10 years, the ABA shifted from simply requiring the receiving lawyer to notify the sender to requiring return of the documents, then back to simple notification. Virginia, for instance, requires return. Three neighboring jurisdictions take the same approach, but three simply require notification. Litigators must know what the governing law requires and suppress their instinct to exploit the adversary’s mistake.