Waiver of the attorney-client privilege due to inadvertent disclosure is an important issue that courts and litigants have grappled with for a long time. With electronic discovery becoming increasingly common, and with electronic privilege reviews replacing paper reviews, the issue takes on greater importance. The risk of inadvertently disclosing privileged or protected information is heightened in electronic discovery because of the very nature of electronic information. For example, although a party makes an effort to segregate and delete privileged information from a computer drive prior to producing the electronic documents to the opposing party, the deleted files may still be present within a larger folder structure. A document may be inadvertently produced as a result of an electronic document break error. And as the use of electronic discovery consultants and other vendors increases, litigants face an increased risk of inadvertent disclosure due to errors made by vendors.
Elizabeth King, Waving Goodbye to Waiver? Not So Fast: Inadvertent Disclosure, Waiver of the Attorney-Client Privilege, and Federal Rule of Evidence 502, 32 Campbell L. Rev. 467 (2010).