December 22nd, 2008 by ahoogThe Federal Rules of Evidence Rule 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) was enacted by Congress and made effective September 19, 2008. This important rules was created to address the dramatically increasing costs of electronic discovery by providing a predictable and consistent standard to govern the waiver of privileged information.
Rising costs of pre-production review
Due to the proliferation of electronic documents, attorneys became justifiably concerned that a single disclosure of attorney-client privilege or work product (in a collection of documents that could easily exceed one million documents) would result in waiver of not only the document(s) produced but in a general subject matter waiver for the current and any future litigation. The results of such a waiver could be devastating and as a result, some felt a record-by-record review of all electronically discovered material was warranted.
Important highlights of FRE Rule 502
Rule 502 protects against inadvertent disclosures provided reasonable steps were taken to prevent the disclosure and reasonable and prompt steps to rectify the error were taken (notably Federal Rule of Civil Procedure 26(b)(5)(B)). It also states that a Federal court order stating that protection was not waived must be respected in all Federal and State courts. This comity is an important detail as any rule lacking such cooperation would require the attorney to still incur the pre-production costs since the materials could be discovered in State proceedings.
Additional links
These additional links are provided for further reference:
- Archive of all documents related to Rule 502 on http://www.uscourts.gov
- Cornell Law School’s Federal Rules of Evidence (more readable on-screen)
