In a previous article, I discussed Rhoads Industries v. Building Materials Corp., No. 07-4756 (E.D. Pa. Nov. 14, 2008), in which Judge Michael M. Baylson of the Eastern District of Pennsylvania issued the first opinion to apply the newly enacted Federal Rule of Evidence 502.
Baylson held that Federal Rule of Evidence 26(b)(5)’s mandatory logging requirement for privileged materials also mandated that any privilege be waived for the 110 electronic files not logged within three weeks of receiving an alert. However, the judge held that privilege was not waived for the 215 e-files logged via manual review within the three-week window, reasoning that the disclosure was inadvertent and, while its steps to prevent disclosure and rectify error were not reasonable, the interests of justice nevertheless favored Rhoads Industries.
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