In our continuing efforts to keep our clients and followers updated with important information regarding eDiscovery, please take note of the release of an extensive document by Judge Grimm on Federal Rule of Evidence 502. The entire article should be examined by lawyers for its content; below we try and capture the essence of his important discussion.
The first paragraph of Judge Grimm’s analysis of Federal Rule of Evidence 502 sums up one of the major current concerns that lawyers have regarding today’s discovery process – the potential of waiving attorney-client privilege or work-product protection. In the Richmond Journal of Law and Technology, Vol. XVII, Issue 3, he (and his co- authors) lay out a very thorough (82 Page) thesis offering a forthright criticism of the current court interpretation of the rule and contains an outline of steps for practitioners to follow. It is a must read for any attorney involved in today’s e-Discovery process. The article opens with the following summary paragraph:
Nothing causes litigators greater anxiety than the possibility of doing, or failing to do, something during a civil case that waives attorney-client privilege or work-product ptotection.1 Attend any seminar, webcast, podcast, or other continuing legal education course dealing with the discovery of electronically stored information (“ESI”) and you are sure to hear about this concern and how to mitigate it.2
It is important to note that Footnote 1 references the advisory committee note that says that “[Rule 502] responds to the widespread complaint that litigation costs necessary to protect against waiver of the attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operates as a subject matter waiver of all protected communications or information.”
Cleary, the advisory committee understood what the problems were and tried to address them very specifically with Rule 502. Rule 502 had two very specific purposes, 1) to resolve disputes regarding inadvertent disclosures and subject matter waiver of privilege information and 2) to address complaints that litigation costs to protect against subject matter waiver have become prohibitive. Judge Grimm feels “to date it has not lived up to its promise”. The problem lies not with the wording of the rule, but rather incorrect judicial interpretation. Judge Grimm would like the rule to be uniformly applied which would result in predictable actions in the discovery process. Predictability, not perfection, is what is important.
Where does the waiver apply?
The article examines each section of Rule 502 in detail. Starting with a statement “‘Rule 502 is titled “Attorney –Client Privilege and Work Product: Limitations on Waiver’. As the title makes clear, the rule applies only to the attorney-client privileges and the work product doctrine.9 It has no effect on any other evidentiary privilege, such as the vast array of governmental, or other common law privileges….” Additionally, it only applies to certain types of waivers, namely those made by an actual disclosure of privileged or protected information. Judge Grimm further states that the rule reaches disclosures made during civil and federal proceedings in federal court, during administrative proceedings and to federal administrative agencies during investigations.
When does the waiver apply?
Rule 502(a) limits the circumstances under which a subject matter waiver will be found. Subject matter waiver occurs when: 1) the waiver is intentional; 2) the disclosed and undisclosed communications concern the same subject matter; and (3) the communications should in fairness be considered together. Judge Grimm believes that intentional means that while no showing of intent to waive the privilege is required, the disclosure must be voluntary and not inadvertent. Further, the Rule does not make a distinction between fact work product and opinion work product regarding subject matter waiver. Regarding the fact that many courts have declined on the grounds of fairness to require production of opinion work product, Judge Grimm emphasizes that the rule was designed to prevent a party from producing material in a selective manner.
Rule 502 (b) concerns the inadvertent disclosure and the circumstances in which disclosure of protected information will act as a waiver. There is no waiver if the following conditions are met: 1) the disclosure was inadvertent; 2) reasonable steps were employed to prevent the disclosure and 3) once the error was discovered, prompt and reasonable steps were taken to rectify the situation (quick and timely notice to the opposition. Judge Grimm is critical of courts that have combined the first two objectives into one statement, pairing reasonableness into a judicial determination of inadvertence.
The first and most important factor in the determination is whether the production was inadvertent or not. He further points out that courts have imposed a requirement of extraordinary measures be employed to satisfy the reasonable requirement in the rule. He feels strongly that the rule was designed to encourage the use of computer based analytical models to conduct privilege review and that somehow requiring extraordinary measures will make attorneys shy away form timely productions using technology.
In summary, the intended goal of Rule 502, to reduce the cost of ESI discovery by using advanced analytical and computer review, will never be reached if the courts focus on a demand for perfection or near perfection during productions. Perfection is the goal, but not an absolute. The goal should be to return the discovery process to being a part (albeit an important part) of the litigation, but not the primary focus of the litigation. After all, discovery is still primarily about finding the facts surrounding a case.
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