Inadvertent Document Productions and the Threat of Attorney Disqualification
by Etan Mark
Imagine a scenario in which a particularly obnoxious opposing counsel dumps 10,000 pages of documents on your doorstep three weeks late and the day before a hearing on a motion to compel. Seven hours later, frustrated and bleary-eyed from mind-numbing review, you stumble across an e-mail from opposing counsel to his client, with the subject line “case strategy.” While thoughts of waiver may begin dancing excitedly in your head, you must tread carefully; you have unwittingly begun a potentially self-destructive journey into uncharted waters. If you attempt to gain any advantage from counsel’s “mistaken” disclosure of this document, you face the strong possibility of disqualification.
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