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.