Prediction for 2008: Avoiding Inadvertent Disclosure of Privileged Information becomes Top E-discovery Risk and Costs More than Complying with the FRCP

We have a year under our belt with the amended Federal Rules of Civil Procedure and the new procedures might not have caused as much immediate collateral damage as expected.  After all, the rules are procedural and did not affect substantive rights.  While the common law interpretation of the new procedures continues to evolve in practice, quickly emerging on the horizon is a substantive law that will, by comparison, rock the legal world — new Rule 502 of the Federal Rules of Evidence. 

There is much uncertainty, even among many lawyers, as to when the attorney-client privilege should be invoked or asserted.  Let’s face it, business people, and lawyers too, insist on using email for everything.  Hence, operationally, there are numerous challenges we all face in protecting confidential information from leaking through email forwarded to third parties.

In the context of records and information management, this is an increasingly important area.  New Federal Rule of Evidence 502 is scheduled to take effect in December 2008. The rule codifies circumstances in which a party might inadvertently disclose privileged information without waiving privileges. If “reasonable steps” are taken to avoid disclosure (e.g., measures taken before producing information to an adverse party) but some information accidentally gets in the hands of a third party, there would not be a waiver.  Good RIM policy and procedures would constitute reasonable steps. If you review the notes to the new rule, which are provided in earlier posts on this blog, you will find reference to this notion.  I testified on this specific subject before the Advisory Committee on Evidence Rules in January 2007.

The doctrine of inadvertent waiver is an area of great concern to all generals counsel in the United States, as a recent Lexakos survey of chief legal officers demonstrates. The subject of privilege waiver is an area lawyers, compliance officers, IT and RIM professionals need to study and better understand.  2008 should be an interesting year!

Best wishes to all for a happy holiday season!


One Response

  1. […] on December 19, 2007 Contending that avoiding inadvertent disclosure of privileged documents will become the top EDD risk of 2008, DataKos opines: There is much uncertainty, even among many lawyers, as to when the attorney-client […]

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