The Effective Use of Rule 502(d) in E-Discovery Cases

http://ow.ly/78vZ1

An article by Thomas C. Gricks III posted on the Legal Intelligencer on the law.com website.

This article discusses Rule 502 of Evidence, and how it should be utilized during litigation involving review of electronically stored information.

As the author states, "Used properly, Federal Rule of Evidence 502, and particularly Rule 502(d), can be one of the most valuable assets available to e-discovery counsel in dealing with the attorney-client and attorney work product privileges during review and production of electronically stored information (ESI)."

The article further states, "The cornerstone of privilege protection under Rule 502 is Rule 502(d), which provides that "[a] Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other Federal or State proceeding." The protections available under Rule 502(d) do not depend on whether the disclosure was inadvertent. In fact, the Advisory Committee Note to Rule 502(d) establishes that a court order issued under the authority of Rule 502(d) may provide for non-waiver regardless of the care taken by the disclosing party."

The article discusses the attorney-review process, and touches on the clawback provisions of Rule 502. The article further touches on reviews that may involve an automated process, or involve a review in which the entire population is not actually checked by counsel.  The author states, "As Magistrate Judge Paul W. Grimm of the U.S. District Court for the District of Maryland observed: "If a nonwaiver agreement is ambiguous ... , the court may take a formalist view and resort to analysis under Rule 502 if the agreement doesn't explicitly govern resolution of the dispute.""

This is a comprehensive article that discusses each subsection of Rule 502, and provides very useful insight to practitioners that have to deal with such eDiscovery issues, and attorney-review of ESI.