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December 13, 2007



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.

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