How are privilege and privacy protected in discovery?
• Generally, privilege is waived if a document or data is given to someone outside the privilege. There is no “litigation exception” to this rule, and consequently, if a privileged document is produced in litigation, the privilege is usually deemed waived. A variety of courts have examined this doctrine and set forth different tests for what constitutes a waiver of privilege. In some jurisdictions, only a knowing and voluntary abandonment of the privilege serves as a waiver, while in others, even an inadvertent disclosure of a privileged document constitutes a privilege waiver. • The proposed amendments to the Federal Rules of Civil procedure will make explicit a practice that has long been informally used by parties to complex litigation by allowing a party who inadvertently produces privileged materials to request their return. Under Rule 26(b)(5)(B), a party is required to return, sequester, or destroy privileged material once the party is notified that it was inadvertently produced
