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A Senate bill introduced last week would help litigators avoid the inadvertent disclosure of privileged attorney-client and attorney work product materials during discovery. Senate Judiciary Chairman Patrick Leahy (D-Vt.) and ranking committee member Arlen Specter (R-Pa.) sponsored the legislation, which was crafted with text proposed by the Judicial Conference and input from the American Bar Association. The bill would create Federal Rule of Evidence 502, allowing litigants to avoid waiving privilege on inadvertent disclosures if they make reasonable efforts to vet the documents beforehand and ask for the return of privileged information in a timely manner. A federal judge could order that privilege is not waived because of an inadvertent disclosure, and that order also would apply to any other related federal or state proceedings. Currently, most federal courts consider whether an inadvertent disclosure triggers a waiver on a case-by-case basis, a system that has created differing standards among various jurisdictions.
Brendan Smith can be contacted at [email protected].

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