CHAPTER 2 - 2-6 INADVERTENTLY RECEIVED MATERIALS

• Jurisdiction: United States

2-6 Inadvertently Received Materials

If a lawyer receives a document inadvertently sent during the course of representation, the lawyer must promptly notify the sender.¹²⁵ This rule does not require the lawyer to abstain from reading such materials, or from using them at trial. Issues related to inadvertent disclosure of privileged or otherwise protected materials are treated as matters of civil procedure. Courts may enter protective orders or other remedial responses if the disclosure was truly inadvertent.¹²⁶

The Connecticut Supreme Court has adopted the "moderate test" to be applied in cases of inadvertent disclosure of otherwise protected documents.¹²⁷ In determining whether the inadvertent disclosure vitiates a claim of privilege, the moderate test evaluates (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interest of justice would be served by relieving the party of its error.

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^[125] Conn. Rules of Prof'l...