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Electronic Discovery Institute Course - Class 23: Federal Rule of Evidence 502

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on April 21, 2018. Go to to sign up for it.

The course on Privilege is taught by William Butterfield, a partner at Hausfeld; Paul Weiner, an eDiscovery counsel for Littler Mendelson; Kevin Brady, Of Counsel with Redgrave LLP; Magistrate Judge Andrew Peck; John Rosenthal, a Winston & Strawn LLP partner; Magistrate Judge John Facciola; and David Greenwald, an attorney with Jenner & Block.

FRE 502's purpose is to ease the review of privileged documents. It is designed to prevent the inadvertent production of privileged documents, and reduce the cost of both paper documents and ESI. It's a valuable tool that can limit the risk of disclosing privileged information. FRE 502 allows the parties to agree on a protocol. If the parties follow the terms of the protocol, there will not be a waiver of privilege. The parties can set their own ground rules.

FRE 502(a) states that there will be no subject matter waiver whether a production is inadvertent or not. The exception - the rule of completeness - states there will be a waiver if other documentation ought to be considered in conjunction with the disclosed document.

FRE 502 deals with disclosure, but not the use of privileged information. If a privileged document is used subject matter waiver can take place.

FRE 502(b) deals with inadvertent production and when it constitutes a waiver. There is a balancing test:

1. Was the production inadvertent or not? If so ask . . .

2. Did the party take reasonable steps to protect the privilege.

3. Was there a prompt attempt to get the privileged document back?

At the meet and confer the parties should come to an agreement on the procedures to be followed. If they are followed, the reasonableness standard will be met. FRE 502(b) will be applicable if the parties can't get a FRE 502(d) order. Search term analytics work very well in finding privileged documents.

FRE 502(c) deals with the production of privileged documents in a state court proceeding. The more protective of the federal rule and the state rule applies.

FRE 502(d) is the most important part of FRE 502 because it is the most protective of privileged documents. If a FRE 502(d) order is in effect, there is no waiver in the case in which it is issued, or in any subsequent case. In Judge Peck's opinion, some privileged documents will always be produced, no matter how careful the parties are.

A FRE 502(d) order allows a party to claw back its privileged documents. In Judge Peck's opinion it is virtually malpractice for an attorney not to request a FRE 502(d) order if they are handling a large production. A court can issue a FRE 502(d) order sua sponte. A FRE 502(d) order will facilitate quicker production of documents. Defendants, in general, don't take advantage of the protections of FRE 502(d). They often continue to conduct timely, intensive privilege reviews. FRE 502(d) orders give protections against third parties.

Whereas typical document review may cost $1 - $2 per document, reviewing documents for privilege may add an additional dollar to the cost of review. FRE 502(d) orders can save clients an enormous amount of money.

FRE 502(e) is a weaker version of FRE 502(d). It provides for an agreement between the parties in the absence of a court order to be binding on them, but does not have applicability in other proceedings.

FRE 502(f) is a technical requirement providing for protection in federal arbitration or mediation, and allows for the rule to apply to state court proceedings even where there is a choice of law.

FRE 502(g) states that FRE 502 only applies to attorney client privilege and work product protection, not other types of privilege, such as martial communication privilege.

The volume of ESI began to explode in the early 2000s. While there are tools allowing responsive documents to be identified without extensive human linear review, they did not facilitate the review for privileged documents. Quick peek and claw backs allow for this problem to be circumvented, and FRE 502 was adopted to encourage their use. However quick peek agreements are still rarely employed.

The ethical obligation to preserve a client's confidential information will still be effective. Judge Peck recommends that parties get a client's written agreement before conducting a quick peek review. FRE 502(d) do not effect a party's right to withhold non-responsive and irrelevant documents.

Work production protection is a qualified protection, where attorney client privilege is absolute. Work production protection is jointly owned by the attorney and her client - the attorney can assert it on her own initiative. Attorney-client privilege only covers communications from the client to the attorney. Judge Facciola criticized attorneys as having too broad a view of attorney-client privilege.

FRE 502 is an attempt to reduce the amount of information that needs to be listed on a privilege log. A document by a document log may no longer be necessary. ESI would make such logs extremely voluminous. Judge Peck criticized logs which are submitted listing both attorney-client privilege and work production protection as a basis for the same document. If the parties insist on the privilege of each document being reviewed by the court, rather than just a sample, Judge Peck will recommend that a special master be engaged.

Filtering can be used to remove privileged material - and avoid document by document review. Courts will look favorably on efforts to reduce the costs of document review. Judge Facciola noted that judges often get frustrated by attorneys who designate too many documents as privileged. He complained about a particular case in which he agreed to review more than 7000 documents and had to review the same emails many times. It may not be necessary to log certain documents which are clearly privileged. Judge Facciola specifically pointed out that it's not necessary to separately log each email in a long thread.

FRE 502(a) addresses where a party voluntarily discloses a document; FRE 502(d) deals with the inadvertent disclosure of privilege documents.

Case law has a determined that claw back provisions can be implemented even when all parties do not agree on them, in order to help streamline a case. In Brookfield Asset Management, Inc., v. AIG Financial Products Corp., No. 09 Civ. 8285 (PGG) (FM),2013 U.S. Dist. LEXIS 29543 (S.D.N.Y. Jan. 7,2013) concerned a case in which five drafts of board minutes were produced. One side argued that the production waived the privilege over the minutes. The drafts were produced in redacted form, but the redacted text was visible in the load file produced with the documents. Judge Maas ruled that FRE 502(d) allowed the parties to conduct a claw back no matter what the circumstances of production.

Counsel needs to be aware of their ethical duties with respect to reviewing privileged material. Attorneys have an ethical obligation to preserve confidential information. Model Rule 1.6 requires that all communications with a client be kept confidential, regardless of whether or not they are privileged.

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