Fear Not the Inadvertent Waiver
For those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take “reasonable steps” to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a “federal office or agency” — thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.
FRE 502 was drafted “to address a growing problem that is adding inordinate and unnecessary burden, expense, uncertainty, and inefficiency to litigation.” In other words, law firms had been billing many many hours of junior associate time towards “exhaustive, time-consuming, and expensive examination of documents item by item, often page by page, before they [could] be comfortable turning them over in discovery.” Sound familiar? In order to prevent discovery costs “grossly disproportionate” to the “stakes of the underlying litigation,” the plaintiffs bar and the defense bar joined forces in support of this new rule. Particularly in the age of voluminous electronic discovery, this should return at least a few hours of life to the document serfs, although firms may be loathe to relinquish their discovery cash cows so quickly. In any case, the rule seems to be well conceived and drafted, unlike many that have come before, but it remains to be seen whether it will be subject to abuse in practice by lawyers seeking to strategically disclose information beneficial to their client while protecting less helpful information under the privilege.