Fla. Fam. L. R. P. 12.281

RULE 12.281

INADVERTENT DISCLOSURE OF PRIVILEGED

MATERIALS

(a) Assertion of Privilege as to Inadvertently Disclosed

Materials. Any party, person, or entity, after inadvertent disclosure

of any materials under these rules, may thereafter assert any

privilege recognized by law as to those materials. This right exists

without regard to whether the disclosure was made under formal

demand or informal request. To assert the privilege, the party,

person, or entity must, within 10 days of actually discovering the

inadvertent disclosure, serve written notice of the assertion of

privilege on the party to whom the materials were disclosed. The

notice must specify with particularity the materials as to which the

privilege is asserted, the nature of the privilege asserted, and the

date on which the inadvertent disclosure was actually discovered.

(b) Duty of the Party Receiving Notice of an Assertion of

Privilege. A party receiving notice of an assertion of privilege under

subdivision (a) must promptly return, sequester, or destroy the

materials specified in the notice, as well as any copies of the

material. The party receiving the notice must also promptly notify

any other party, person, or entity to whom it has disclosed the

materials of the fact that the notice has been served and of the

effect of this rule. That party must also take reasonable steps to

retrieve the materials disclosed. Nothing herein affects any

obligation under Rules Regulating the Florida Bar 4-4.4(b).

(c) Right to Challenge Assertion of Privilege. Any party

receiving a notice made under subdivision (a) has the right to

challenge the assertion of privilege. The grounds for the challenge

may include, but are not limited to, the following:

(1) The materials in question are not privileged.

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(2) The disclosing party, person, or entity lacks

standing to assert the privilege.

(3) The disclosing party, person, or entity has failed to

serve timely notice under this rule.

(4) The circumstances surrounding the production or

disclosure of the materials warrant a finding that the disclosing

party, person, or entity has waived its assertion that the material is

protected by a privilege.

Any party seeking to challenge the assertion of privilege must

do so by serving notice of its challenge on the party, person, or

entity asserting the privilege. Notice of the challenge must be served

within 20 days of service of the original notice given by the

disclosing party, person, or entity. The notice of the recipient’s

challenge must specify the grounds for the challenge. Failure to

serve timely notice of challenge is a waiver of the right to challenge.

(d) Effect of Determination that Privilege Applies. When

an order is entered determining that materials are privileged or that

the right to challenge the privilege has been waived, the court must

direct what is to be done with the materials and any copies so as to

preserve all rights of appellate review. The recipient of the materials

must also give prompt notice of the court’s determination to any

other party, person, or entity to whom it had disclosed the

materials.