DOCUMENT Magazine - February/March 2009 - (Page 18)

FEaturE By Edwin Larkin and karEn Quirk September 19, 2008, Federal Rule of Evidence 502 (a.k.a. FRE 502 or Rule 502) was enacted to address the loud outpouring of complaints from litigants that the litigation costs required to protect against waiver of attorney work product and the attorneyclient privilege had become prohibitively expensive. Rule 502 provides, in part, that inadvertent disclosure in federal proceedings or to a federal agency, such as through the production of privileged communications in discovery, does not operate as a legal waiver if reasonable steps were taken to avoid disclosure. Rule 502 also enables courts and parties to limit the consequences of the waiver. While it is nothing new that litigants have to endure significant costs in order to protect against the waiver of privileged information, the costs of discovery have increased dramatically in recent years, as the proliferation of email and other forms of electronic recordkeeping have multiplied the number of documents litigants must review prior to production in discovery to protect privileged material. Prior to Rule 502, most litigants viewed pre-production review as necessary because the inadvertent production of even a single privileged document put a party at significant risk. If a privileged document was disclosed, a court could find that the privilege was waived not only as to that specific document, but also to all other documents concerning the same subject matter. Some courts found a waiver even though the party had taken steps to avoid disclosure. In addition, the waiver operated not just in the case in which the accidental disclosure was made, but also in subsequently filed cases. Consequently, litigants were forced to conduct exhaustive and expensive reviews to prevent the inadvertent disclosure of privileged material. The costs of such reviews could be disproportionate to the overall cost of the case and to the significance of the privileged documents. On Rule 502 attempts to alleviate these problems by providing a practical approach to the waiver of privilege while limiting the scope of waiver to the particular litigation at issue. Rule 502(b) is the provision that specifically addresses inadvertent waiver. It provides that disclosures in a federal proceeding or to a federal officer or agency do not operate as a waiver if: (1) The disclosure was inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. Rule 502(b) goes further than Federal Rule of Civil Procedure 26(b)(5)(B), which was adopted in 2006 out of the same concerns over the burden and cost of reviewing electronically stored information. However, Rule 26(b)(5)(B) provided only a mechanism for asserting claims of privilege after a document was inadvertently produced; it did not address whether or not the inadvertent production actually waived the privilege, nor did it limit the scope of waiver. Rule 502 provides that there is no inadvertent waiver if the disclosing party can show that they took “reasonable steps” to prevent and rectify the mistake. Although the Rule does not define “reasonable steps” and the courts have yet to clearly define what constitutes “reasonable steps,” the Advisory Committee’s notes to the Rule Don’t Unlock the Waiver of Privilege What does FRE 502 have to do with your e-discovery initiative?

Table of Contents for the Digital Edition of DOCUMENT Magazine - February/March 2009

DOCUMENT Magazine - February/March 2009
Ad Index
Editor’s View
The E-Return
Research Desk
The Hot 10
Heads or Tails
Content Connection
New Products
Don’t Unlock the Waiver of Privilege
Pulling a MacGyver?
The Print Impression
Talking Transactions
BPM: Improving the Way You Process
Brief Counsel
Transpromo Nirvana

DOCUMENT Magazine - February/March 2009