Post Process

Everything to do with E-discovery & ESI

Case Blurb: Creative Pipe; Three Judicial approaches to examining waiver of privilege

Posted by rjbiii on June 15, 2008

[C]ourts have taken three different approaches when deciding whether the inadvertent production to an adversary of attorney client privileged or work-product protected materials constitutes a waiver. Under the most lenient approach there is no waiver because there has not been a knowing and intentional relinquishment of the privilege/protection; under the most strict approach, there is a waiver because once disclosed, there can no longer be any expectation of confidentiality; and under the intermediate one, the court balances a number of factors to determine whether the producing party exercised reasonable care under the circumstances to prevent against disclosure of privileged and protected information, and if so, there is no waiver.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *4 (D.Md. May 29, 2008 )

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