“In this day and age when there can be literally millions of electronic files … the risk of one slipping through the cracks is very high. The fear of waiver leads to undue expense and to extravagant claims of privilege.” Senator Arlen Specter, introducing legislation to enact Federal Rule of Evidence 502
When Federal Rule of Evidence 502 was introduced as legislation in 2007, it was hailed by members of Congress, judges and practitioners as a solution to the ever-increasing costs associated with electronic discovery. As the first rule addressing evidentiary privilege passed since the inception of the Federal Rules of Evidence, it resolved and clarified several inconsistent decisions amongst the circuits regarding inadvertent disclosure of privileged material. Despite the potential of this rule to bring cost savings and sanity to a variety of discovery situations, however, practitioners and judges have been slow to incorporate its language into their agreements and orders. Any producing party especially in cases with any level of electronic document review should strongly consider using this gift from the judiciary and Congress as a safeguard in case of inadvertent disclosure.
