Electronic Discovery Law

Persons interested in the proposed new federal evidence rule addressing privilege waiver will testify before the Advisory Committee on Evidence Rules today in Phoenix, Arizona. Witnesses on today’s schedule include:

• George L. Paul of Lewis & Roca, LLP, Phoenix
• Thomas Y. Allman of Mayer, Brown, Rowe & Maw, Chicago
• Frank Verderame of Plattner Verderame, PC, Phoenix; appearing on behalf of his firm and the Arizona Trial Lawyers Association
• Carol Cure, Division Counsel, Shea Homes Limited Partnership, Scottsdale
• Patrick J. Paul of Snell & Wilmer, L.L.P., Phoenix
• Kenneth L. Mann of Beus Gilbert PLLC, Scottsdale
• Thomas P. Burke, II of Burke Panzarella Rich, Phoenix
• Michael J. O'Connor of Jennings, Strouss & Salmon, PLC, Phoenix
• Daniel J. McAuliffe of Snell & Wilmer, L.L.P., Phoenix and President-Elect of the State Bar of Arizona
• Patrick A. Long of Long, Williamson & Delis, Santa Ana, California and President of DRI
• Steven K. Hazen, Secretary of the Executive Committee of the State Bar of California Business Law Section, Los Angeles
• Melissa Richards Smith, Gillam Smith, L.L.P., Marshall, Texas
• Edward G. Hochuli of Jones, Skelton & Hochuli, Phoenix
• Douglas L. Christian of Harper Christian Dichter Graif, P.C., Phoenix

Comments received by the Committee to date, including the prepared statements of several of the witnesses who will be testifying, may be viewed here. A second hearing is scheduled to occur in New York City on January 29, 2007.

Proposed Evidence Rule 502, available here, 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.
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.

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.