Federal Rule of Evidence 502 became effective more than a year ago and applies to all proceedings commenced after or pending as of Sept. 19, 2008.[FOOTNOTE 1] The Rule was enacted in response to the burgeoning costs of preproduction privilege review in today's electronic world.[FOOTNOTE 2]
Even though many documents produced during discovery have little value, lawyers spend a lot of time and their clients' money reviewing every piece of information to prevent the inadvertent disclosure of privileged information.[FOOTNOTE 3] Fulbright & Jaworski's Fourth Annual Litigation Trends Survey, conducted in 2007, found that 26 percent of U.S. based respondents spend between 20 percent and 50 percent of their litigation budget on preproduction privilege review.[FOOTNOTE 4] The cost of conducting such reviews can easily exceed the value of the case.[FOOTNOTE 5]
By limiting the consequences of inadvertent production, Rule 502 was meant to reduce parties' burden to conduct expensive preproduction privilege reviews.[FOOTNOTE 6]
Before enactment of amended Rule 502, the Rules did not provide specific guidance regarding whether privilege was waived upon the inadvertent disclosure of privileged information. Whether or not privilege was waived depended on the jurisdiction where the case was pending.[FOOTNOTE 7] Some jurisdictions were lenient, some used a five factor "middle ground" test, and some were quite strict.
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By: Robert D. Owen and Melissa H. Cozart