Reviewing electronic documents for privilege can be horribly time-consuming and expensive; and experience teaches that privileged material often slips through the net, as reviewers miss privileged communications buried in long e-mail chains or in invisible metadata. Against that background, this article examines how pending and proposed amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence seek to address these problems.
Attempts to address the difficulties associated with electronic discovery expose a tension among at least three policies. First, wide-ranging, liberal discovery is deep-rooted in U.S. litigation, and until people stop writing incriminating e-mails, they will be powerful litigation weapons. Second, because the public has the right to every man’s evidence, privileges are narrowly confined and easily destroyed when the key element of confidentiality is lost by disclosure to an opponent, necessitating a privilege review. Third, there is a trend to limit the delay and costs caused by discovery.
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