EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, June 20, 2011

The Future is Now for FRE 502

I happened to notice a couple of interesting recent articles in the New York Law Journal. The first is entitled Broad Federal Court Powers Under Evidence Rule 502(d) (H. Christopher Boehning and Daniel J. Toal, New York Law Journal, April 8, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202489354099; and the other is entitled Can Technology ‘De-Commoditize’ Document Review? (Robert W. Trenchard and Steven Berrent, New York Law Journal, April 28, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202491954188&slreturn=1&hbxlogin=1.  Both articles address the changing legal market and litigation strategies due to technological advances and the vast proliferation of computer data.

The e-discovery amendments to the Federal Rules of Civil Procedure were passed in 2006 and were followed by Federal Rule of Evidence 502 “Attorney-Client Privilege and Work Product; Limitations on Waiver.”  Rule 502 is available at: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Evidence.pdf. The purposes behind the passage of Rule 502 were two-fold. First, it was meant to resolve disputes about the effect of inadvertent disclosure of privileged or protected information, and second, it was meant to “respond to widespread complaints about litigation costs.”

In the “Broad Federal Court Powers” article referenced above, the authors discuss two cases, Rajala v. McGuire Woods, 2010 WL 2949582 (D. Kan. July 22, 2010); and Radian Asset Assurance Inc. v. College of the Christian Brothers of New Mexico, 2010 WL 4928866 (D. N.M. Oct. 22, 2010). In both cases, the Courts imposed nonwaiver agreements despite the lack of party agreements. In other words, the Courts determined they were authorized to issue nonwaiver orders despite the objection by one of the parties to the litigation. 

In a recent law journal article, Magistrate Judge Paul Grimm (a leader in the field of electronically stored information (ESI)), along with two of his law clerks, Lisa Yurwit Bergstrom and Matthew P. Kraeuter, indicated that a court may issue a nonwaiver order sua sponte - in the absence of a motion by one of the parties. See Federal Rule of Evidence 502: Has it Lived Up to its Potential?, Richmond Journal of Law and Technology, Vol. XVII, Issue 3, Spring 2011. available at http://jolt.richmond.edu/v17i3/article8.pdf, at p. 59.  The entire Journal issue is devoted to ESI and is an excellent source of information in this area.

Boehning and Toal warn counsel that if they are unable to agree to claw back or quick peek agreements, the courts may well do it for them. 

The second article, “Can Technology ‘De-Commoditize’” appears to have its genesis in a New York Times article entitled Armies of Expensive Lawyers, Replaced by Cheaper Software, John Markoff, March 4, 2011, available at:

http://www.nytimes.com/2011/03/05/science/05legal.html. Markoff highlights the problem that formed one of the bases for Rule 502 – the expense of e-discovery. According to authors Trenchard and Berrent, e-discovery costs “can make up to 50 to 90 percent of a case’s budget, and document review is often the lion’s share of that amount.” According to the New York Times article, “e-discovery software can analyze documents in a fraction of the time for a fraction of the cost.” The “exclusive province of human decision makers” and the cost of paying those decision makers will soon become a thing of the past, according to these articles. This will affect lawyers, clients and the legal system in general. The authors believe there will be a resultant need for change in discovery and evidentiary rules. 

In the area of e-discovery and Rule 502, change is happening at a rapid fire pace. Lawyers, law firms, judges, and of course law professors will need to keep up with these changes. One area of change may well be a “manpower reduction” for lawyers. The future of e-discovery should be fascinating and no one can afford to be left behind. 

Ann Murphy



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