How can a party protect privileged communications when disclose to the court, and what happens if a privilege is inadvertently waived?

How can a party protect privileged communications when disclose to the court, and what happens if a privilege is inadvertently waived?

• A. Assert privilege and seek protective orders; inadvertent disclosure may not waive privilege if the content remains privileged and timely asserted.
• B. Waiver occurs automatically whenever disclosed.
• C. Protective orders are unnecessary.
• D. Inadvertent disclosure always waives privilege.

Answer: (A)

When privileged communications must be shown to the court, the key is to assert the privilege and use protective orders to control how the material is handled. A protective order can limit who may see the information, keep it out of the record, or require return or destruction of copies, helping to preserve the privilege in the judicial process. If a privilege is inadvertently disclosed, it does not automatically waive the privilege. If the content remains privileged and the person with the privilege promptly asserts it and takes reasonable steps to remedy the disclosure, the privilege often remains protected. This approach recognizes that a careless disclosure shouldn’t destroy confidentiality, provided steps are taken to safeguard the information going forward.

When privileged communications must be shown to the court, the key is to assert the privilege and use protective orders to control how the material is handled. A protective order can limit who may see the information, keep it out of the record, or require return or destruction of copies, helping to preserve the privilege in the judicial process. If a privilege is inadvertently disclosed, it does not automatically waive the privilege. If the content remains privileged and the person with the privilege promptly asserts it and takes reasonable steps to remedy the disclosure, the privilege often remains protected. This approach recognizes that a careless disclosure shouldn’t destroy confidentiality, provided steps are taken to safeguard the information going forward.