Anyone who practices in the area of class actions is no doubt intimately familiar with the complex issues and potential pitfalls involved in the discovery of electronic data. As reported by the National Law Journal (through Law.com), Congress has passed legislation designed to create a new Federal Rule of Civil Procedure 502, which is intended to reduce the cost of producing electronic information. The bill, which President Bush is expected to sign into law, will limit inadvertent waivers of privileged information in discovery in federal court. Section (d) allows a federal court to order prospectively that no privilege or protection of information is waived by disclosure in connection with a case pending before it, which, as the NLJ article explains, provides a mechanism to exchange e-discovery without having to create voluminous, time consuming privilege logs. The rule will not be limited to e-discovery, but is motivated by a desire to make litigation less expensive.
The rule will not change parties’ desire to not give an opponent’s lawyers access to sensitive attorney-client or litigation strategy information in the first place, so time will tell whether it has any significant practical impact in reducing litigation costs.