Technological advancements have changed the way businesses operate and their methods of creating and maintaining business documents. More documents are created and stored than years ago and this heightens the pressures of a business faced with discovery requests. Researchers have been trying to come up with the perfect search terms to tag the appropriate documents; however, documents are still overlooked and inadvertently disclosed. Congress adopted Federal Rules of Evidence 502 on September 19, 2008 to help alleviate some of the pain associated with the waiver of privileged documents during e-discovery.
The new rule of Evidence 502 is adept at addressing a prevalent concern in the field of e-discovery. The review of electronic documents can be very expensive. For example, “[s]ome studies have shown that the average work computer holds 32 gigabytes worth of information. It could easily cost in excess of $10,000 per gigabyte to process, review and produce electronically stored information.” The goal of F.R.E. 502 was to: “(1) Reduce the costs and burdens associated with the massive volumes of e-discovery; (2) Provide clear guidance on the waiver of attorney-client privilege and work product protection; (3) Avoid the broad waiver of privilege and work product protection by the disclosure; (4) Protect parties which enter into non-waiver agreements.”
Practitioners are split as to whether F.R.E. 502 has indeed influenced courtroom preparation and behavior. Rhoads Industries, Inc. v. Building Materials Corp. of America was one of the first cases applying F.R.E. 502; however, it failed to advance clarity into the subject of inadvertent disclosures. F.R.E. 502(b) balances the following factors: whether the waiver was inadvertent, whether the party took reasonable steps to prevent disclosure, and whether the party attempted to rectify the error. The court in Rhoads focused on the “reasonableness of the privilege review” and relied heavily on the following factors used in Fidelity & Deposit Co. of Md. v. McCulloch: “(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) The number of inadvertent disclosures; (3) The extent of the disclosure; (4) Any delay and measures taken to rectify the disclosure; (5) Whether the overriding interests of justice would or would not be served by relieving the party of its errors.”
Ultimately, the overriding interests of justice determined the case; however, justice is not a measured standard that is easily transferrable from case to case. Justice is a concept that requires judgment and therefore adds a human element to a 502 analysis. Determining reasonableness via an extremely flexible balancing test defeats the legislative purpose of interjecting clarity into the e-discovery process and leaves practitioners with little guidance as to how to conduct document reviews in such a manner as to preserve the new F.R.E. 502 protections.
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