Ethics

This Ninth Circuit decision breaks no new ground, but does remind us that in general there will be no immediate appeal of inadvertent production during discovery, because both there is no "final decision" and because as a general matter there is no "collateral order" in terms of Cohen. Truckstop.net LLC v. Sprint Corp., (9th Cir., No. 07-35123, 10/28/08). The lawyers perhaps should have tried mandamus...

For those of you who spent time in practice, you know that privilege review is such an expensive process because any "accident" results potentially in subject matter waiver and, in all events, does let the 'cat out of the bag' on that issue. I wonder what the social cost of privilege waiver doctrine is... But, in all events, it should remind lawyers to pursue "no waiver" or "clawback" agreements prior to making any production. Accidents will happen, as Elvis Costello long ago wrote.