On September 19^th, President Bush finally signed S. 2450 (Federal Rule of Evidence 502) dealing with inadvertent disclosure and the subsequent protection of privilege in federal regulatory proceedings and civil litigation (see FRE502).  If you have not followed the evolution of FRE 502, you should quickly become familiar with it as it is a game-changer relating to the protection of privilege generally and document review efforts specifically.

Essentially, the rule protects against the waiver of attorney-client and work product privileges in the instant federal action and all subsequent state and federal proceedings.  The rule was drafted to specifically address the challenges presented by the review of electronic discovery given its technical complexities and scale where it becomes almost inevitable that privileged documents will be inadvertently produced.  As signed, the law protects privilege if: “1) the disclosure was inadvertent; 2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and 3) the holder took reasonable steps to rectify the error…”  While this alone may not be earth-shattering, the law’s importance relates to the non-waiver of privilege in other actions under these conditions or when there is a controlling court order.  Therefore, obsessive-compulsive concerns over the waiver of privilege, particularly in large document productions, should be significantly mitigated.

Testimony presented by DOAR’s president, Mr. Paul Neale, before the advisory committee that drafted FRE 502, has been included in the version that was signed on Friday.  The relevant section states “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.”  Therefore, our expertise and practical experience in the use of analytical tools when making relevancy and privilege determinations, in combination and as an alternative to traditional human document review, are defensible when challenging a privilege waiver argument.  This, we expect, will have a notable impact on using technology to facilitate a much faster and higher quality document review in lieu of a traditional human-based linear approach.  A copy of Paul’s testimony can be found here.

For more information regarding FRE 502, the use of “advanced analytical software applications and linguistic tools” and its applicability to the management and review of electronic discovery, feel free to contact info@doar.com.