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Is the attorney-client privilege waived when emails between a client and attorney are provided during discovery?

Charlotte, NC |

During the course of discovery in a family law case, the opposing party provided an electronic file containing requested email correspondence which (assuming inadvertently) contained many messages to and from the opposing party and their attorney regarding the case. Since the emails were provided voluntarily, even if not intentionally, during discovery, are they now admissible as evidence in court?

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Attorney answers 1


It depends. Some of the considerations to think about: what steps were taken by the party producing the discovery to avoid inadvertent disclosure of information? Did the parties have an agreement regarding inadvertent disclosure of privileged information? Was there an order speaking to such (i.e. inadvertent disclosure)? Also, what was the size of the information produced? Was a small amount of documents produced (such that the producing party should have discovered the privileged information in reviewing what it was producing) or was it a large amount of documents that could have led to inadvertent disclosure despite diligent efforts to prevent such? Best...