Document Review, Texas Style

Now, there’s a Federal Rule of Evidence 502.

The text of the rule can be found here, but the main gist of it is that inadvertent disclosure does not automatically mean waiver in Federal Court any more.  Ediscovery guru Michael Arkfeld says the new rule applies to all actions commenced after the date of enactment and on pending actions if “just and practicable.”  That may mean any litigation you’re working on right now!

We were a little worried about this one because most procedural rules passed by the Supreme Court go into law if Congress does nothing.  This one, since it “creat[es], abolish[es], or modif[ies] an evidentiary privilege” had to be approved by both houses of Congress.  See 28 U.S.C. § 2074(b)

This affects the document review profession by providing a little bit of sanity where there was once abject terror at the thought of letting slip some small bit of privileged information.  Where before, an accidental production could cause waiver of large swath of privileged communication, the new rule will hopefully bring a bit of reason to the process.

Now we have an opinion interpreting the rule.  In the case of a litigant who, it can be said, was rather lax with it’s treatment of privilege (let a vendor run some searches then filter for keywords and produce without review) the Court found no waiver.

This entry was posted on Wednesday, September 17th, 2008 at 19:45 and is filed under Ediscovery Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.