E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

A bill to add a New Federal Rule of Evidence was introduced in the Senate on December 11, 2007 and approved by the Senate Judiciary Committee on January 31, 2008.  Prior to its introduction on December 7, 2007, the ABA sent a letter to the Senate Judiciary Committee endorsing the proposed rule.

The new proposed rule addresses waiver of the attorney-client privilege and the work product doctrine.  The proposed rule provides protection against a finding of waiver in circumstances where there is an inadvertent disclosure/production of privileged material, as long as the disclosing party had taken reasonable steps to prevent the disclosure.

This proposed rule is intended to remedy the problem of conflicting rules and decisions on this topic by the various federal courts.  It is also aimed at the great risk of inadvertant production and soaring litigation document review costs in the age of e-discovery. The proposed rule, however, does not identify what constitutes "reasonable measures" to protect against disclosure, so there will still be plenty of room for disagreement.

thomas.loc.gov/cgi-bin/query/z --Text of proposed Rule 502.

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The Advisory Committee on the Federal Rules of Civil Procedure recently created a new Rule that is at least tangentially related to e-discovery.  The new Rule 5.2 addresses privacy concerns for documents e-filed in federal court.  The new rule provides guidance on what information should be redacted, what may be filed under seal and how to file a single "reference list" containing all confidential information redacted from other documents.  Notably, a party waives the right to the protection of the Rule if it files its own confidential information without redaction.  While some courts, such as  the Eastern District of Wisconsin, had already adopted similar rules on a local basis, the Committee has now made them applicable to all federal civil courts.  The new Rule went into effect on December 1, 2007.

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As part of the hilariously named "Style Project," the Advisory Committee on the Federal Rules of Civil Procedure has renumbered several Federal Rules relating to e-discovery.  I thought the Rules were elegant before, but now, WOW!  I need a cold shower.  A handy chart summarizing the rule changes can be found here.

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