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A document is labeled "attorney-client privilege confidential".

If said document is disclosed by the records custodian providing a box of records to the plaintiff, is the document "fair game" for the plaintiff to cite in any future context (including litigation)? Are there any exceptions when it would not be "fair game" ?

Does saying "Ooops! I did not mean to disclose this" restore AC-Privilege?

Update: Assume the document is photocopied from a set of boxed corporate records and that a documented records request was issued.

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Depends on the jurisdiction and context. There are many places where inadvertent disclosure and reasonable efforts to recover the information may allow the disclosing party to retain privilege. There are others where privilege would generally be waived.

Also unclear is what you mean by "fair game." You probably have no duty to return the document, and you're probably free to disclose its contents as you see fit. The only limitations I can imagine would be on your ability to use it in court.

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  • Thanks! Assume a Florida venue. Assume the document is photocopied from a set of boxed corporate records and that a documented records request was issued – gatorback Sep 27 '19 at 0:25
  • @gatorback, this answer is probably correct. It does indeed depend, though, on what "fair game" means and whether it is "fair game" with respect to what? The privilege, as mentioned, relates to using such privileged info as evidence in court or to glean inappropriate peeks at. the other side's deliberations/legal strategies. Also, were those docs marked "attny-client privilege" for the litigation in which they're currently being requested? Because if they are just older docs, marked as such and retained for any given purpose, the label may not matter at all. – A.fm. Feb 24 at 23:47
  • Usually the Rules of Professional Conduct provide considerable context and guidance. – ohwilleke Feb 24 at 23:49

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