New Federal Rule Of Evidence 502

September 21st, 2008   Filed Under E-discovery, Federal Rule of Evidence 502  

Federal Rule of Evidence 502 goes into effect immediately.

Make no mistake about it. For every lawyer who ever feared sending privileged communications to a non-privileged person — in particular the other side — the president’s recent signature on an amendment to Federal Rule of Evidence 502 is a godsend.

One of the great fears of such an accidental mistake is now substantially ameliorated. And the relief does not come any too soon. In a world of electronic discovery and the possibility of sending an e-mail to the wrong person by looking at one’s computer keyboard cross-eyed, Rule 502 will now assure the errant lawyer that the mere act of sending privileged documents to an unintended recipient will not act as a waiver of the subject matter of the inadvertently disclosed communications so long as the lawyer took reasonable care in the review of the documents.

Indeed the legislation goes as far as jurisprudentially possible to provide this protection not just in federal court but in certain state court proceedings.

Four questions not answered by Rule 502:

First, the new rule does not tell us what happens with respect to the peripatetic documents themselves. One might breathe a little easier knowing the other side cannot ask for another thousand related documents simply because the other side received two or three. But the two or three in and of themselves might reveal juicy information. Can the opposing counsel read them? Share them with opposing counsel’s client? Use them in deposition and at trial?

The second question unanswered by Rule 502 — whether receiving counsel has any obligation to notify the producing party of the inadvertent disclosure……

Third, Rule 502 tells us nothing about any duty on the part of the lucky lawyer to return the privileged documents…..

Fourth, Rule 502 provides no protection for the lawyer from the lawyer’s client. It is our duty to protect the client’s privilege…. 

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