Sent to you by pakurilecz via Google Reader: New Evidence Rule 502
Deals Advantage to E-mail Archival Systems via Electronic Data Records
Law | How to Win E-Discovery by Benjamin Wright on 9/16/08
Inadvertent Disclosure of Privileged Records in E-Discovery

A danger in e-discovery is that the party disclosing records will
inadvertently give its opponent some that are protected by
attorney-client privilege (i.e., attorney-client confidentiality).
E-discovery records are often so voluminous that privileged records
might be turned over by mistake.

To address the danger Congress is adding Rule 502 to the Federal Rules
of Evidence. Effectively the new Rule provides that if a litigant
inadvertently discloses a privileged document, he can still prevent his
opponent from using it – so long as he took reasonable steps to prevent
the disclosure in the first place. In other words, before releasing
records, a litigant needs to make a reasonable search through them to
cull out any that contain protected attorney-client communications.

Such a search is not always easy. In Victor Stanley, Inc. v. Creative
Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), the defendant did search to
cull out privileged communications before delivering a mass of
e-discovery records to the plaintiff. But the cull was imperfect, and
165 privileged documents passed to the plaintiff.

The defendant argued those 165 records should still be protected (i.e.,
the defendant should return them and refrain from using them), but the
court disagreed.
The court said for those 165 documents the defendant had “waived” the
privilege. The court justified its decision by criticizing the methods
the defendant used to cull out the privileged records, noting that
simple keyword searches are known to miss things. The court concluded
the defendant’s methods were not reasonable, as the defendant could not
document it had designed and executed anything beyond a slapdash,
rudimentary keyword search.



An explanatory note to new Rule 502 describes a good search: “Depending
on the circumstances, a party that uses advanced analytical software
applications and linguistic tools in screening for privilege and work
product may be found to have taken ‘reasonable steps’ to prevent
inadvertent disclosure. The implementation of an efficient system of
records management before litigation may also be relevant.”
--Explanatory Note on Evidence Rule 502 Prepared by the Judicial
Conference Advisory Committee on Evidence Rules (Revised 11/28/2007)

Accordingly, Rule 502 will give enterprises more reason to keep
well-indexed e-mail records in an archival system that supports
sophisticated searches and makes records about those searches as they
are executed.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, developers of e-mail
archival and management tools.


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