Unprivileged Data Gets a Privilege

Months before former President George W. Bush left office, he passed a law that brought relief to the legal field. Federal Rule of Evidence 502 has been called a “godsend” for every lawyer who feared inadvertently breaking attorney-client privilege.

The new law attempts to speed up the discovery process and reduce discovery cost by decreasing the risk of unintentional disclosure of privileged information.

To pinpoint privileged material, litigation teams spend endless hours poring over an ever-growing mass of electronically stored information (ESI) included in e-discovery. The goal to prevent accidentally sharing privileged information with a non-privileged person during discovery or any other time. This becomes more and more difficult with the bulging digital files of data, including e-mail, spreadsheets, Word docs, etc.

The idea is that Rule 502 lessens the consequences of producing a privileged document, so parties don’t have to spend so much time and money reviewing docs for privileged material.

Rule 502 allows parties to “clawback” privileged information as long as reasonable steps were taken to prevent disclosure. With the new law, the latest reduced-cost technologies can be used in the review process.


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