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Grant us the serenity to accept things which cannot be changed, the courage to change things which must be changed, and the wisdom to know which is which. Generally attributed to a 1932 sermon by the theologian Dr. Reinhold Niebuhr, variations of the “Serenity Prayer” are well known and well worn-but not particularly well heeded. We continue to lack the wisdom to know the difference and so we continue to try to change what maybe cannot be. On April 24, 2006, the Advisory Committee on Evidence Rules will hold hearings at Fordham University School of Law on proposed new Federal Rule of Evidence 502, the goal of which is to respond to the concern over the prohibitive costs of guarding against inadvertent disclosure, especially in cases involving electronic discovery. The rule may fix a problem, but at what cost? This is a noble goal; no one can dispute that we should, if we can, change this thing, this terrible and inefficient cost of e-discovery. Ah, but there’s the rub-is this a thing that can be changed, or is it the nature of the beast? Must we gather up the courage to act or the serenity to accept? We do not profess wisdom greater nor even equal to the advisory committee. But since we cannot be there on April 24, we have some thoughts we would like to share. This rule might very well fix the problem, but it would do so by exacting a cost we believe is too dear. Moreover, this problem is, we think, one that is temporary, one that will ameliorate as we Luddites adapt to technology. Distinct from proposed Evidence Rule 502-and a year ahead of its timetable-proposed revisions to the Federal Rules of Civil Procedure that bear on e-discovery are already scheduled to become effective on Dec. 1, 2006. The U.S. Judicial Conference committee summed up the problem: “[E]fforts to guard against privilege waiver often become more acute when discovery of electronically stored information is sought. The volume of the information and the forms in which it is stored make privilege determinations more difficult and privilege review correspondingly more expensive and time-consuming, yet less likely to detect all privileged information. Inadvertent production is increasingly likely to occur. Because the failure to screen out even one privileged item may result in an argument that there has been a waiver as to all other privileged materials related to the same subject matter, early attention to this problem is more important as electronic discovery becomes more common.” The average person receives and generates 50 work-related e-mails a day. A typical Fortune 500 company has about 50,000 employees, so it generates roughly 2.5 million e-mails a day, maybe a billion per year. Now, that’s daunting, but doable, as an electronic-storage issue. But how do you find and withhold the privileged stuff without manually reviewing it? With so much data, the cost of reviewing it for privilege is obscene; but the cost of not reviewing it is potential waiver of privilege. Three distinct positions have been taken by courts reviewing inadvertent disclosure of privileged material. Some courts apply a strict accountability approach. No matter how innocent or inadvertent, disclosure waives the privilege. In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989); Ares-Serono Inc. v. Organon Int’l B.V., 160 F.R.D. 1, 4 (D. Mass. 1994). Some apply a lenient approach. Disclosure, no matter how sloppy or negligent, does not waive the privilege. “[I]f we are serious about the attorney-client privilege and its relation to the client’s welfare, we should require more than such negligence by counsel before the client can be deemed to have given up the privilege.” Mendenhall v. Barber-Greene Co., 531 F. Supp. 951, 955 (D. Ill. 1982); Corey v. Norman, Hanson & DeTroy, 1999 Me. 196, 19 (Maine 1999). And other courts follow a middle approach, balancing the facts and circumstances of each case to determine whether a waiver should be found. “In our view, an analysis which permits the court to consider the circumstances surrounding a disclosure on a case-by-case basis is preferable to a per se rule.” Alldread v. Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993); F.C. Cycles Inc. v. FILA, 184 F.R.D. 64, 76 (D. Md. 1998). The solution posed by the proposed civil procedure rule amendments is to encourage the parties to reach an early, prediscovery agreement on protocols for asserting privilege claims and claw-backs of inadvertently produced materials. The idea is that both sides will benefit from an order under which a party can produce electronic data without having to review the data for privilege, comfortable in the knowledge that privileged material can be retrieved once identified. The responding party is saved the expense of a privilege review; the requesting party is saved the time necessary to receive production and the potential that it will be asked to shoulder some or all of the cost. Though the new procedure rules are not yet effective, many parties are already putting them into practice. “It has become increasingly common to see parties enter into agreements to disclose privileged materials provided the disclosure is not taken to entail waiver as to all privileged matters. Because courts will give effect to such agreements, the parties by contract, so to speak, can avoid the general rule that partial disclosure on a given subject mater will bring in its wake total disclosure.” Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine, 287-88 (4th ed. 2001). Ah, but there is a hole in the bucket. XYZ Corp. can agree with ABC Inc. that inadvertently produced privileged documents will maintain their privilege, will be returned once discovered. And that agreement will be binding-on XYZ and ABC. But not on the other 6 1/2 billion persons who share our planet. In fact, these discovery agreements may make it even easier for nonparties to demonstrate waiver. Lulled by the protection of a claw-back agreement, the parties may not make any privilege review at all before making disclosure. In those jurisdictions that apply the balancing test, that look to the measures taken to guard against disclosure, the failure to do anything save enter into a private agreement may not weigh well. When first proposed, the civil procedure rule amendments took a flier at filling the hole with a claw-back provision, but that provision was dropped before transmittal to the Supreme Court for approval. It is back-on steroids-in proposed Evidence Rule 502. Rule 502 has two major features. First, as to the general issue of inadvertent production, it resolves the conflict among the jurisdictions by imposing the balancing test. That, we think, is good. A single rule is better than three, and we agree that the balancing test is best. But, second, the rule provides that if the litigants memorialize their private agreement to dispense with a privilege review in an agreed court order, that order will pre-empt the substantive law of the 50 states and will bind all litigants in all proceedings, state or federal, without notice or an opportunity to be heard. That, we think, is unwise. Put aside the constitutional implications of whether the commerce clause is broad enough for Congress to pre-empt the states on their substantive laws of privilege or whether there are due process concerns over depriving non-parties of their rights without notice. Well, no, don’t put that aside-that was just a rhetorical device for emphasis. These are important considerations, and the eventual cost of the inevitable litigation that will be engendered by them may well exceed the costs the rule seeks to ameliorate. But here is the real point: As painful as is the current cost of privilege review in e-discovery, this is a temporary problem. We don’t need major surgery; time will cure this problem. We simply need a rule of good practice Your cellphone has more memory than the on-board computers on the Apollo spacecraft that landed men on the moon. The 2.5-pound, $2,000 laptop on which we composed this article has more memory and computing capacity than did ILLIAC II, the 5-ton, multimillion-dollar supercomputer that went into service when we attended college. Technology is advancing at a rate we cannot imagine. But we don’t have to imagine. The technology already exists to make the cost of performing a privilege review insignificant. If a communication is privileged, it is so at the time, not in retrospect. Presumably, a lawyer is involved in some way in the communication. If a party truly believes that a communication is privileged and wants later to successfully assert the privilege, it is not much to ask that the communication somehow embed that intent in its content. There doesn’t need to be a federal rule-we simply need a rule of good practice. Good lawyers should counsel their clients that they should identify privileged communications as such. We should all be on notice-today-that we must include, and instruct our clients to include, a unique symbol or term such as “privileged” or “$!” or whatever in any privileged message. And when we do that, the electronic privileged stuff can be searched for and segregated with a few keystrokes at a cost close to nil. It may or may not be wise, but we are serene with the current state of things. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy, the firm’s chairman and past chair of the ABA Discovery and Trial Practices Committee, can be reached at [email protected]. Byman can be reached at [email protected].

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