The Future of Inadvertent Disclosure: The Lingering Need to Revise Professional Conduct Rules

66 Pages Posted: 14 Mar 2009 Last revised: 30 Jun 2015

See all articles by Paula Schaefer

Paula Schaefer

University of Tennessee College of Law

Date Written: March 9, 2009

Abstract

In recent years, the American Bar Association and state bars have deferred to lawmakers to create a legal solution to the problems associated with inadvertent disclosure. When Federal Rule of Evidence 502 was enacted in September 2008, lawmakers and commentators praised the new rule as a remedy to costly pre-production privilege review and as an answer to the uncertainties of waiver law.

This article examines the numerous inadvertent disclosure issues that remain unanswered for litigators and transactional attorneys, and considers the new problems created by Federal Rule of Evidence 502. In 2009, transactional attorneys have no practical means to obtain the return of an inadvertently disclosed document; litigators have limited abilities to protect the content of a privileged document pending a waiver ruling; and all attorneys face uncertainty in addressing confidential information in metadata. Compounding these problems, Rule 502 incentivizes little or no pre-production privilege review (encouraging quick peek and clawback orders), even though there is a continuing risk of waiver under the rule. Further, determining professional conduct obligations to prevent and respond to inadvertent disclosure is often difficult given the various rules, ethics opinions, and cases that address the issue.

The bar's interests in confidentiality, compliance with professional conduct rules, and efficiency in an era of increasing inadvertent disclosures would be furthered by a professional conduct solution to these problems. This article proposes two professional conduct rule changes that complement Federal Rule of Evidence 502, but also stand alone to answer inadvertent disclosure issues for litigators and non-litigators.

Keywords: inadvertent disclosure, clawback, quick peek, waiver, attorney-client privilege, work product, technology, evidence, practice and procedure

Suggested Citation

Schaefer, Paula, The Future of Inadvertent Disclosure: The Lingering Need to Revise Professional Conduct Rules (March 9, 2009). Maryland Law Review, Vol. 69, No. 2, p. 195, 2010, University of Tennessee Legal Studies Research Paper No. 59, Available at SSRN: https://ssrn.com/abstract=1359285

Paula Schaefer (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States
865-974-6793 (Phone)

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