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Waiving (Goodbye to) Privilege Under Rule 502

When Federal Rule of Evidence 502 was amended in 2008 to make clear that the inadvertent production of privileged material will not constitute a waiver if the producing party took reasonable steps to prevent disclosure, there was a collective sigh of relief by inside and outside counsel. After all, with the explosion of e-mail and other forms of electronic material, in many cases the risk that privileged documents would slip through the cracks was real and substantial, and the costs to protect against disclosure (and a full subject matter waiver) were becoming prohibitive. Now, it seemed, so long as counsel took "reasonable steps" to prevent disclosure, litigants would have a free pass if privileged documents were inadvertently produced.

But what, exactly, are "reasonable steps" in the world of e-discovery, where the use of search terms and sampling has, by necessity, become routine among inside and outside counsel? The Advisory Committee has provided some guidance, recognizing that "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."

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Matthew Ingber

Matthew Ingber is a litigation partner at Mayer Brown.

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