Is inadvertent disclosure of privileged documents a waiver of attorney work product privilege?

of all should the courts seize upon slight and equivocal circumstances as a technical reason for destroying the privilege. (People v. Gardner (1980) 106 Cal.App.3d 882, 888, 165 Cal.Rptr. 415.) Because it would result in a waiver of this critical privilege, the interpretation of section 6254.5 urged by Brazil begins with a strike against it.

In addition, an interpretation favoring waiver leaves the PRA open to manipulation. It is not unusual for PRA requests to be made by counsel opposing a public agency in litigation as an alternative or supplement to ordinary discovery. An attorney who receives inadvertently produced documents during discovery has an ethical duty to refrain from unnecessary review of the documents, notify opposing counsel, and return the documents upon request. (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817818, 68 Cal.Rptr.3d 758, 171 P.3d 1092.) If mere inadvertent release of privileged documents under the PRA creates a waiver of the attorney-client and attorney work product privileges, however, counsel receiving such documents are presumably under no similar ethical duty to refrain from review and return them, since the documents are no longer privileged by the time they come into the attorney's possession. These differing consequences encourage attorneys litigating against a public agency to accompany every discovery request with an identical PRA request, merely on the chance that an inadvertent production of privileged documents should occur. This is just the type of gotcha theory of waiver decried by O'Mary in concluding inadvertent disclosures do not result in a waiver under Evidence Code section 912. (O'Mary, supra, 59 Cal.App.4th at p. 577, 69 Cal.Rptr.2d 389.)