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Privileged Electronic Records

E-discovery risk: the party turning over documents may mistakenly hand its adversary some documents that should be protected by attorney-client privilege (that is, confidentiality because they are communications between an attorney and a client). E-discovery often involves so many records that privileged ones might divulged inadvertently.

In answer to this risk, Congress is adopting new Federal Rule of Evidence 502. Basically the new Rule says that if a litigant mistakenly divulges a privileged record, she can still prevent her adversary from using it – provided she had taken reasonable steps at the beginning to prevent the release. Another way to say it: before delivering e-discovery documents, a party should execute a reasonable search through them to screen out any that contain protected attorney-client material.

That kind of screening can be hard to do. In Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), the defendant did search to filter for attorney-client material before disclosing voluminous e-discovery documents to the plaintiff. However, the filter was imperfect, and the plaintiff came to possess 165 privileged records.

The defendant contended those 165 documents should remain protected (i.e., the plaintiff should return them and be barred from using them), but the court disagreed. The court said for those 165 items the defendant had "waived" the privilege. As a rationale for its decision, the court . . . Continue Reading