How Attys Should Handle Unsolicited Privileged Information

By Hilary Gerzhoy, Charles Loeser and Lauren Snyder (December 16, 2021, 5:01 PM EST) -- You receive a package in the mail from an anonymous source. The cover letter reads, "To Whom It May Concern, please find information relevant to your case." The enclosed packet contains privileged material about your opponent in ongoing litigation. Are you obligated to notify your opponent? Can you use the material?

Most attorneys are familiar with the rules governing inadvertent disclosure — every discovery response includes a disclaimer about returning inadvertently produced material. But what about intentional disclosure? Unfortunately, the answer depends on your jurisdiction.

In November, the California Court of Appeal, Fourth Appellate District, ruled in Providence Industries LLC v....

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