Chief Magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland ponders why Federal Rule of Evidence 502 — which encourages cooperation among counsel with the goal of reducing the costs of production of electronically stored information and reviews — “has not lived up to its potential,” in the current issue of the University of Richmond’s Journal of Law and Technology (JOLT). Writing with his law clerks, Lisa Bergstrom and Matthew Kraeuter, Grimm says the explanation “may have to do with the reality that a disappointingly small number of lawyers seem to be aware of the rule and its potential, despite the fact that the rule is over two years old.”
Another factor: “Courts have not interpreted Rule 502 with sufficient consistency in reported decisions to enable practitioners and their clients to predict how they will fare if they attempt to take advantage of the rule to reduce the need for manual, document-by-document pre-production review by either employing electronic search and retrieval methodologies or entering into time and money saving non-waiver agreements.”
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