Barkett Publishes Article on Privileged Documents

Partner John Barkett has authored an article on the consequences of inadvertent disclosure of privileged material appearing in the Fall 2007 issue of Natural Resources & Environment, a publication of the American Bar Association's Section on Environment, Energy and Resources. Titled "The Pieces to the Privilege Protection Puzzle," the article opens with a puzzling hypothetical that shows how fractured American jurisprudence is on the question of privilege waiver. John explores court decisions, ABA model rules and the Federal Rules of Civil Procedure addressing the issue and discusses how "quick peek" and "clawback" agreements can minimize the risks of a privilege waiver. He also outlines a proposed federal rule of evidence that could resolve inadvertent waiver, waiver as to third parties and disclosures made in state court proceedings. As to the latter, the proposal will be binding on state courts only if adopted by Congress. To read the article, please click here.