Courts typically do not treat an inadvertent disclosure of documents protected by the attorney-client privilege as a waiver. When, however, a lawyer receives documents from the opposition that appear privileged, the issues quickly become complex. Questions arise as to the appropriate response. Unlike challenging a claim of privilege asserted in a privilege log, when the full substance of the communication is revealed through an inadvertent production, there is often a powerful incentive to challenge the applicability or scope of the privilege.
Simultaneously at work are several competing principles, policies and rules. On one hand, privileged information is often highly relevant. Arguably, fairness requires that a fact-finder consider all relevant evidence, especially if our legal system aims to uncover truth. Moreover, lawyers may legitimately view their duty of zealous advocacy as requiring that they argue waiver or challenge the existence or scope of the privilege.
