Case Study Of Inadvertent Disclosure

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ISSUE Under Florida statutes and cases pertinent to inadvertent disclosure, is Mr. Beene required to return the privileged documents when (1) the products liability team inspected each document included in the discovery; (2) the amount of inadvertent disclosures was miniscule; (3) the degree of disclosure was rather small; (4) Mr. Fitzgerald requested the return as soon as he became aware; and (5) the client has a right to prevent disclosure of confidential communication, as well as an attorney having a responsibility to notify an opposing firm of reasonably determined privileged communication?
BRIEF ANSWER Yes. This is due to the fact that reasonable precautions were taken by having the products liability team examine each document, and
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Abamar Housing and Development v. Lisa Daly Décor, 698 So. 2d 276, (Fla. 3rd DCA 1997). In Nova, the court was unable to make a decision in regards to whether reasonable precautions were taken to prevent inadvertent disclosure because the fax machine to which it was sent was considered public by nature for the reason that it was used by at least some of the teaching staff. 25 So.3d at 87. In Abamar, the court concluded that the petitioners demonstrated reasonable precautions by assigning both a lawyer and a paralegal to review the documents that were to be produced. 698 So.2d at 279. In our particular case, Ms. Ross assured our firm several times that their products liability team had thoroughly examined each page of the 25,000 documents that were in the discovery. Additionally, we were assured there were no documents protected by attorney-client privilege included. Mr. Beene would argue that these documents were not included on the privileged log and the documents were voluntarily disclosed to him. However under Florida’s waiver of privilege by voluntary disclosure, voluntary disclosure is not applicable when the disclosure itself is privileged communication. §90.507, Fla. Stat. (1995). Based on these facts, the court will likely hold that reasonable precautions were taken because the products liability team inspected the documents and they were only produced

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