Electronic Discovery Law

As reported earlier, at its June 2006 meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and approved publishing for public comment proposed Evidence Rule 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver). The rule has now been published for public comment, and is available here on the U.S. Court’s Federal Rulemaking website. Proposed Evidence Rule 502 is intended to reduce the risk of forfeiting the attorney-client privilege or work product protection “so that parties need not scrutinize production of documents to the same extent as they do now.” It opts for the middle ground in determining whether inadvertent disclosure of attorney-client privileged or work product material is a waiver, in accord with the majority view. Under the new rule, inadvertent disclosure of privileged or protected information during discovery would constitute a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. In addition, the disclosure of privileged or protected information would not effect a subject matter waiver unless fairness so requires. Furthermore, a confidentiality order entered by the court would bind all nonparties in any federal or state court.

Persons wishing to comment on the proposed new rule must do so by February 15, 2007. The Advisory Committee is especially interested in receiving comment on a possible provision governing selective waiver, which would prevent a general waiver of the privilege or protection for information disclosed to a law enforcement or regulatory agency in the course of an investigation.

Written comments may be sent electronically to Rules_Comments@ao.uscourts.gov, or by mail to: Peter G. McCabe, Secretary, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Thurgood Marshall Federal Judiciary Building, Washington, D.C. 20544. In accordance with established procedures, all comments submitted will become part of the official record and be made available to the public. Comments received by the Committee to date may be viewed here.

In addition, interested persons will have an opportunity to appear at public hearings to testify regarding Evidence Rule 502. Requests to appear at a public hearing must be in writing and received by the Secretary to the Standing Committee (at the address listed above) at least 30 days prior to the scheduled date for the hearing. Public hearings on proposed Evidence Rule 502 are scheduled to occur in Phoenix, Arizona, on January 12, 2007, and in New York, New York, on January 29, 2007.

Following the public comment period, the proposed Evidence Rule 502 will require approval by the Advisory Committee on Evidence Rules, the Standing Committee, the Judicial Conference, and the United States Supreme Court. In addition, proposed Evidence Rule 502 will require an affirmative act of Congress before going into effect.