Voyage of Discovery

Introducing new legislation now, in the waning days of an already logjammed Congressional session, may seem like a lost cause. But a bill on a new discovery rule has been cast into those crowded waters. Senate Judiciary Chairman Patrick Leahy (D-Vt.) and ranking committee member Arlen Specter (R-Penn.) introduced a bill (S. 2450) on Tuesday that would help minimize the costly and cumbersome process of guarding against the inadvertent release of privileged attorney-client and attorney work product materials during discovery.

The bill, which contains text recommended by the Judicial Conference, would create Federal Rule of Evidence 502. If approved, the legislation would allow litigants to avoid waiving privilege on inadvertent disclosures if parties took reasonable efforts to vet the documents and asked for the return of any privileged information in a timely manner.

"The surging use of email and other electronic media has forced parties to spend billions of dollars and countless hours to guard against the unintentional release of such information," Leahy's office reported. Specter added that the new rule would help ensure that "the wheels of justice will not become bogged down in the mud of discovery.”

That kind of wallowing may soon be over. Even if the bill doesn't survive the crush this year, it still could be approved next year.

Comments

[wolfs2cents]

Considering the extent of public comment and testimony on the proposed new rule, in all likelihood proposed Rule 502 of the Federal Rules of Evidence will become law in December 2008. This rule would protect parties from waiving the attorney-client privilege in limited circumstances. Under the proposed legislation, an accidental or inadvertent disclosure does not operate as a waiver if "reasonable steps" are taken to prevent disclosure. Litigation and common law interpretation will determine what might constitute "reasonable steps." In the context of e-discovery and the onslaught on email and other electronically stored information in organizations, as the committee notes indicate, the institution of effective records management policies and procedures could be deemed reasonable steps. Inasmuch as few companies have effective records management compliance programs, proposed Federal Evidence Rule 502 could prove expensive for companies.