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Archive for October 6th, 2008

Effects of New FRE 502 discussed

Posted by rjbiii on October 6, 2008

Attorneys from Paul Hastings Janofsky & Walker LLP have posted an article discussing inadvertent disclosure and its effect on privilege under new FRE 502:

Under the Rule, parties can create the waiver rules that govern the proceeding, and those rules will be binding on third parties and in state proceedings.

How does the rule work? The article explains:

Under the new Rule 502(a), inadvertent disclosure of protected information can never result in a subject matter waiver. Intentional disclosure of protected information in a federal proceeding or to a federal agency will operate as a subject matter waiver only if: (1) the waiver is intentional, (2) the undisclosed material covers the same subject matter as the materials that were disclosed, and (3) the materials “ought in fairness to be considered together.” Federal Rule of Evidence Rule 502(a). Thus, subject matter waiver is “reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.” Advisory Committee Explanatory Note to Rule 502(a).

The article contains an interesting prediction on the bottom-line results of the new rule:

The Rule will reduce the costs of privilege review associated with large e-discovery productions, and will limit the impact of intentional and inadvertent disclosures of attorney-client communications and attorney work product (collectively “protected information”).

If true, then the E-Discovery World just got a little less frightening…

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