Florida Family Law Rule 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.
(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.
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.
(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.