Federal Rule 502 Corrects Gap in FRCP 26(b) but Companies Still Need to Deliver on Reasonable eDiscovery Standards

When President Bush signed S.2550 into law on September 19, 2008, the Federal Rule of Evidence (FRE) 502 went into immediate effect.  This law brought much needed clarity to section 26(b) (5) (b) of the Federal Rules of Civil Procedure (FRCP). When the FRCP was amended in 2006, the addition of 26(b) (5) (b) was recognition that the sheer volume of documents in an eDiscovery request would lend itself to the accidental disclosures of data that could jeopardize the attorney-client privilege.  Attorney-Client privilege is quite simply a court recognized protection of communications between a client and their attorney.  This protection is designed to allow open and honest communication between clients and attorney's so as to aid in the legal process.  

A recent example of this occurring was a May 2008 ruling in Maryland that an accidental disclosure of 165 documents during the eDiscovery process had waived attorney-client privilege for a company embroiled in an intellectual property infringement case.  Although 26(b) (5) (b) was a welcome attempt to bring a standard response to the issue of accidental disclosure, it has not held up in court and FRE 502 was born. 

FRE 502 speaks specifically to a standardization of the procedure on privilege waiver where an inadvertent disclosure of information protected by attorney-client privilege or work protection occurs as a result of a legal eDiscovery request. This is an important clarification to the loss of attorney-client privilege as it pertains to accidental disclosure of documents.  If the courts rule a disclosure of documents has waived this privilege, it can have a devastating effect on the defense of a case. FRE 502 provides that inadvertent disclosure in a federal proceeding does not waive attorney-client privilege provided:

• The disclosure was indeed inadvertent
• The holder of the disclosure took reasonable steps to prevent the disclosure
• The holder promptly took steps to rectify the error

eDiscovery becomes extremely difficult to discuss without talking about the associated costs and staggering amounts of data that can be subject to review. Even though FRE 502 attempts to reduce the costs associated with eDiscovery, it does not reduce the vast amounts of data associated with these types of legal eDiscovery requests that companies need to cull, especially in the arena of email.

The challenge is managing these growing email data stores while ensuring a reasonable standard can be applied to any accidental disclosure so as to not jeopardize attorney-client privilege. Applying this standard to large amounts of data such as email is paramount to ensuring companies control their eDiscovery processes while mitigating the associated risks.

Estorian's Looking Glass introduces these desired controls over email data stores as well as ensures a reasonable standard is present in this very important part of the eDiscovery process. It helps to prevent accidental disclosure of confidential emails by allowing companies to proactively index, track and search email communications when responding to eDiscovery requests. 

Estorian's Looking Glass addresses the issues defined in FRE 502 and helps safeguard attorney client privilege through several features such as:

• A proactive approach to email archive management. Email archives greatly improve a company's ability to search, retrieve and examine all emails in an organization without relying on the need to access and search end user .pst files.
• Legal retention of email with active monitoring. Companies no longer need to employ an after-the-fact fire drill to produce important email documentation.  LookingGlass provides for the storing and indexing of all email as well as permits legal holds and searches of emails for eDiscovey purposes.   
• Email can be flagged and forwarded based on user defined parameters that match your eDiscovery needs.  E-mail can be automatically monitored in real-time and reported against for adherence to policies based on internal and external requirements. 

The federal government acknowledging the depth of data and the cost of eDiscovery is a welcome and needed change to the FRCP but FRE 502 still does not completely alleviate the associated risks of disclosure. It does, however, introduce a reasonable standard to the process of eDiscovery that could inadvertently waive attorney-client privileges and implementing LookingGlass goes a long way towards demonstrating that companies are putting in place reasonable steps to prevent such accidental disclosures.

Whether or not FRE 502 does anything to reduce the associated costs of eDiscovery still remains to be seen but companies can be guaranteed that email volumes will continue to mount. It is only through adopting a proactive approach to managing this data that companies can minimize the risks associated with accidental disclosure and ensure they do not inadvertently waive their attorney-client privilege rights now or in the future.