New Federal Rule of Evidence 502 Provides Protection for Inadvertently Disclosed Documents

On September 19, 2008, President Bush signed S. 2450, which enacted new Federal Rule of Evidence 502 (Pub. L. No. 110-322, 122 Stat. 3537).1 Rule 502 limits waivers of attorney-client privilege and work product protection to facilitate efficiency of document productions and reduce costs associated with discovery. The rule applies immediately to all pending or future cases. Because the new rule depends in part upon “reasonable” steps taken in advance, it would be prudent for clients and their counsel to develop procedures now that can benefit them in future proceedings.

 

The litigation trend toward production of greater volumes of electronically stored information (“ESI”) sparked most of the concerns regarding the waiver of documents protected by privilege. Congress conceded the need to contain rising discovery costs and address concerns regarding waiver of evidentiary privilege resulting from inadvertent disclosures and even limit the scope of waiver for certain intentional disclosures. In complex litigation, counsel may devote significant effort to producing large volumes of documents while withholding attorney-client privileged communications or work product. Prior to Rule 502, the law on disclosure of privileged materials varied by jurisdiction, and production of a single or few documents in one jurisdiction had implications for other, undisclosed documents, with the results potentially varying by jurisdiction.1 The text of the rule may be found at http://www.uscourts.gov/newsroom/2008/S2450EnrolledBill.pdf. Considering many corporations litigate issues in multiple jurisdictions across the nation, this risk is important to minimize….

 

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