On September 8, the U.S. House of Representatives passed a bill that adds Rule 502 to the Federal Rules of Evidence and President Bush officially signed it (who says he’s not doing anything for this country?).
This is good news because it’ll make the world of e-discovery a little less frightening.
Rule 502 brings about a change in the law of privilege and waiver.It’s intended to reduce the costs of privilege review for large e-discovery productions and limit the potentially disastrous impact of inadvertent disclosures of privileged documents, like attorney-client communications and work product.
To set the stage, the law in many jurisdictions is that if even one privileged document is produced – purposely, inadvertently or because an attorney messed up – there’s a big risk that the court’s going to find that the attorney-client privileged is waived.The kicker is that it may be waived not only as to the one document produced, but as to all related documents in that case, and possibly others.
With e-discovery – where the sheer volume of document production is so high -there are many innocent chances for a few privileged documents to escape a privilege review by attorneys.It’s no wonder that law firms are so fearful of waiving privilege that they employ associates or contract attorneys just to review every document produced.
In federal courts at least, Rule 502 intends to alleviate some of this fear and reduce the skyrocketing costs of e-discovery.Here’s a few ways how:
1.Subject matter waiver will only occur in a case of an intentional disclosure of a privileged document and the waiver will only apply to the particular document disclosed.
2.An inadvertent disclosure due to a mistake by an attorney, vendor or anybody, will not waive privilege or work product protection as long as the producing party “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.”
The rule doesn’t state what constitutes “reasonable steps” but the Advisory Committee does say that “a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken reasonable steps…”
They also say “the implementation of an efficient system of records management before litigation may also be relevant.”
The message seems clear – utilizing a solid platform with standard set of operating procedures is critical. Additionally, use of experienced technical assets, like Nextpoint, can provide further insulation against inadvertant waiver — and the malpractice risk that would arise from it.
Nilam Singh, Esq. is a Producer with Nextpoint and actively assisting the company’s customers in managing their electronic discovery needs. She can be contacted at firstname.lastname@example.org