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Thomas J. Hall and Judith A. Archer Thomas J. Hall and Judith A. Archer

In our age of electronic discovery, litigation counsel in complex disputes frequently utilize the services of third-party vendors and databases to assist with the review and production of hundreds of thousands of documents. This, combined with the use of key word searches and predictive coding, can leave open potential cracks through which privileged documents may slip. Thus, it is not unusual that documents that should have been withheld as protected by attorney-client or work-product privilege are inadvertently produced. If opposing counsel refuses to comply with a request to return those documents, and perhaps even indicates an intent to use them, what are the next steps attorneys should take to prevent inadvertent waiver of privilege? Recently, the Commercial Division addressed this issue head-on in Alrose Steinway v. Jaspan Schlesinger, 2021 NY Slip Op. 30620(U) (N.Y. Co. March 5, 2021), putting litigants on notice that their duty to cure inadvertent disclosure may require promptly moving for a protective order even where, upon learning of the inadvertent production, they repeatedly demanded that opposing counsel return the privileged the documents and cease any use thereof.

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