Litigation Alert: New Federal Law to Reduce Litigation Expense...Federal Rule of Evidence 502


On September 19, 2008, the President signed into law a bill aimed at reducing litigation expense.1 If you have experienced litigation, you know that a large amount of time and money is spent reviewing documents and data—not just for relevant evidence, but to preserve attorney-client privilege and work-product protection.2 A careful review must be made to ensure that no privileged communications are inadvertently disclosed.3 Clients prudently make costly efforts to prevent disclosure of any privileged documents, because a court may find that an inadvertent production of an otherwise inconsequential document has waived the client’s privilege for that document and also for all communications concerning the same subject matter.

Fueling this problem is the inconsistent treatment that state and federal courts have given to the issue of waiver. Some courts apply a “strict liability” test and hold that any inadvertent production waives the privilege; other courts are more lenient. The problem and expense is further heightened in cases involving large-scale electronic discovery.4 Congress has taken notice of these rising costs and has enacted a law aimed at reducing them.

The new law creates a Federal Rule of Evidence 502, which brings nationwide uniformity and establishes a standard of “fairness” concerning the waiver of the attorney-client privilege and work-product protection for disclosures made in federal proceedings and to federal offices or agencies. The Rule also enables parties to have greater control over whether a disclosure of privileged material will waive a privilege.

Please see full alert for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Mintz Levin | Attorney Advertising

Written by:


Mintz Levin on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.