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.
The more sophisticated counsel have been dealing with this for years by requiring a “clawback” provision in protective orders. These provisions are far better protection than that provided by Rule 502 as far as I can see. So, I really don’t see how 502 is going to have any material impact. In fact, counsel who rely upon 502 protection versus a “clawback” provision do so at their peril. I actually have a post on my Lean and Mean Litigation Blog discussion clawbacks and why they should be SOP http://leanlitigation.typepad.com/weltman/2008/06/the-dangers-of.html
Excellent point, Stewart. I can also see the new rule being used as a justification for motions to compel responses to overly broad discovery requests on the grounds that the responding party’s privileged information will be protected. If so, the rule will have the opposite of its intended effect.