Law Comments
New Federal Rule of Evidence 502 Protects Against Waiver of Attorney Client and Work Product Privileges When Disclosure is Inadvertent.
Maintaining the confidentiality of communications during the discovery process is a significant concern of every litigator. In large commercial cases the task of maintaining client confidentiality can become daunting. Requests for documents often require the production of hundreds of thousands of memos, notes and the like, most of which have been circulated among numerous corporate officers and employees. Even though precautions are taken to protect against the disclosure of a privileged communication, an inadvertent disclosure may occur. This concern has become magnified in today’s business environment where e-mail and other forms of electronic communication are the norm. The technology has dramatically increased the shear volume of correspondence. This fact has greatly increased the possibility of an inadvertent disclosure of an otherwise privileged or protected communication, and with it the risk that a court will declare a waiver of the privilege or work product not only with respect to the document inadvertently disclosed, but to all related documents and information. Guarding against this possibility has contributed to the spiraling cost of litigation.
Whether an inadvertent disclosure results in a waiver of the attorney-client or work product privilege of disclosed and non-disclosed information is a question that has received inconsistent treatment. Some courts take the position that an inadvertent disclosure automatically constitutes an across-the-board waiver. In Re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989). Other courts have held that inadvertent disclosure could never lead to a waiver. Mendenhall v. Barber-Greene Co., 531 F.Supp. 951 (D.C. Ill. 1982). A middle approach weighs the totality of the circumstances surrounding the disclosure and applies a five-part test to determine whether waiver should apply. The test considers : (1) the reasonableness of precautions taken to prevent disclosure; (2) the amount of time taken to remedy the error; (3) the scope of discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness. See, Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5th Cir. 1993). Recognizing that the present era of e-discovery requires a fresh approach, Congress adopted Federal Rule of Evidence 502.
New Federal Rule of Evidence 502 makes waiver of the attorney-client and work product privilege less likely where there has been an inadvertent disclosure. First, if the disclosure leads to a waiver with respect to the disclosed material, waiver as to non-disclosed materials will not result unless all three of the following conditions are met: (1.) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. As to the issue of whether an inadvertent disclosure waives the privilege as to the disclosed information itself, Congress opted for a “totality of the circumstances” approach, crafting a rule that simplifies the five part test described above. Under the Rule, the disclosed information will remain privileged provided three conditions are met: (1) the disclosure is inadvertent; (2) the holder took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. The rule also protects an inadvertent disclosure that occurs in state court action from resulting in a waiver in a federal proceeding. The Rule became effective for all cases filed after September 19, 2008.
This comment was written by Carl Gigante
