Rule 502 And Electronic Discovery

Law360 (October 27, 2008, 12:00 AM EDT) -- When does inadvertent release of privileged documents constitute a waiver of attorney-client privilege? This question is addressed in new Federal Rule of Evidence 502, which was signed into law on Sept. 19, 2008.

The question frequently arises during the discovery phase of litigation, when large document productions raise the risk of inadvertent production.

Rule 502 aims to correct the divergence found in courts’ approaches regarding waiver through inadvertent production; the rule injects some needed moderation and balance into the case law.

Rule 502 provides that an...
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