On September 19, 2008, Federal Rule of Evidence (FRE) 502 passed into law with the goal of establishing uniform, nationwide standards addressing the waiver of attorney-client privilege and work product protection. Besides healing the rift between numerous jurisdictions with varying standards, FRE 502 responds to rapidly escalating e-discovery costs by attempting to change the traditional document-by-document review process.
“The proposed new rule facilitates discovery and reduces privilege-review costs by limiting the circumstances under which the privilege or protection is forfeited, which may happen if the privileged or protected information or material is produced in discovery,” according to the committee notes for the rule. “The burden and cost of steps to preserve the privileged status of attorney-client information and trial preparation materials can be enormous. Under present practices, lawyers and firms must thoroughly review everything in a client’s possession before responding to discovery requests. Otherwise they risk waiving the privileged status not only of the individual item disclosed but of all other items dealing with the same subject matter. This burden is particularly onerous when the discovery consists of massive amounts of electronically stored information.”
