Federal Evidence Review

Drafters of FRE 502 highlighted specific factors that may be considered in deciding whether inadvertent disclosure results in waiver of the attorney client privilege and work product doctrine

Since FRE 502 was enacted on September 19, 2008, focus now turns to the application of its provisions, including case law development of the rule. No cases have yet been decided applying the new rule. One key area addressed by FRE 502 concerns the treatment of inadvertent disclosure. FRE 502(b) clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.”

FRE 502 resolved a conflict in the cases in determining whether inadvertent production of protected information waives either the attorney client privilege or work product material. According to the legislative history, three positions had been applied in the case law. See FRE 502 ACN (noting conflict and citing Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005) (surveying three positions in the case law) (ACN cited in 154 CONG. REC. S1317-S1318 (Feb. 27, 2008)). The Hopson case, noted by the drafters of the rule, highlighted the three positions as follows:

“Specifically, three distinct positions have been taken by the courts: [1] the ‘strict accountability’ approach followed by the Federal Circuit and the First Circuit (which almost always finds waiver, even if production was inadvertent, because ‘once confidentiality is lost, it can never be restored’); [2] the lenient ‘to err is human’ approach, followed by the Eighth Circuit and a handful of district courts (which views waiver as requiring intentional and knowing relinquishment of the privilege, and finds waiver in circumstances of inadvertent disclosure only if caused by gross negligence); and the third approach, [3] adopting a ‘'balancing' test that requires the court to make a case-by-case determination of whether the conduct is excusable so that it does not entail a necessary waiver.’”

Hopson, 232 F.R.D. at 235-36 (footnotes omitted). The drafters of the rule selected the majority view, explaining:

“The rule opts for the middle ground: inadvertent disclosure of protected communications or information in connection with a federal proceeding or to a federal office or agency does not constitute a waiver if the holder took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver.”

Additionally, the explanatory notes for the FRE identified some factors from the cases that may be considered on the issues whether an inadvertent disclosure results in waiver of protected information. See ACN. Some of the factors identified by the drafters may include:

• The reasonableness of precautions taken;
• The time taken to rectify the error;
• The scope of discovery;
• The extent of disclosure and the overriding issue of fairness

ACN (quoted in 154 CONG. REC. S1318 (Feb. 27, 2008)) (text modified). Factors concerning “the reasonableness of a producing party’s efforts” may include:

• The number of documents to be reviewed;
• The time constraints for production;
• The implementation of an efficient system of records management before litigation; and
• Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken ‘reasonable steps’ to prevent inadvertent disclosure.

ACN (quoted in 154 CONG. REC. S1318 (Feb. 27, 2008)) (text modified)

The new rule clarifies some significant uncertainty on the inadvertent disclosure doctrine under current law. This guidance from the legislative history will be useful for the first cases applying the inadvertent disclosure provision under FRE 502(b. For more information on the new rule, see the prior posts on FRE 502.