Burkhart v. Arthrex, Inc.
Arthrex obtained an order declaring roughly 1,576 documents privileged, barring Dr. Burkhart from using them, and disqualifying his trial counsel for reviewing and producing them. The Second District held the communications — emails among Burkhart, Arthrex, and their respective counsel — were never 'confidential communications' under section 90.502 because Burkhart was an original participant, not an inadvertent recipient, and reversed the disqualification order.
Key facts
- Dr. Burkhart and Arthrex, Inc. exchanged emails with their respective counsel regarding a business matter, and Arthrex later sought to declare approximately 1,576 of these documents privileged and bar their use.
- Arthrex obtained a trial court order declaring the communications privileged, barring Dr. Burkhart from using them, and disqualifying his trial counsel for reviewing and producing the documents.
- +2 more key facts with a free trial
Why it matters
A strong tool for litigators facing aggressive privilege clawback and disqualification motions: it confirms that a party cannot retroactively assert attorney-client privilege over emails on which the opposing party was… — full analysis with a trial
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