On September 8, 2008, the U.S. House of Representatives passed S. 2450, a bill which the Senate passed in February. S. 2450 will add a new Rule 502 to the Federal Rules of Evidence. According to an article by my colleagues Larry Shiekman and Steve Harvey of Pepper Hamilton LLP, the bill is intended to reduce the cost of e-discovery by reducing the risk of inadvertent disclosure of attorney-client privileged material.
The article contains several insights about the new rule, including:
Subdivision (d) is probably the most important change to the e-discovery landscape. In 2006, the Federal Rules of Civil Procedure were amended to permit courts to include in Rule 16 orders “any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production.” The idea behind the 2006 change was that parties could avoid the excessive cost of pre-production review by entering into agreements governing the disclosure of protected material, such as “claw-back” or “quick-peek” agreements. The obvious problem with the 2006 change was that such agreements would be binding only upon the parties and would have no effect in other litigation or government investigations. Subdivision (d) addresses that issue . . .
To read the full text of the alert, click here.
UPDATE: President Bush signed the bill into law on September 22, 2008.