Federal Rule of Evidence 502, enacted on Sept. 19, 2008, has been heralded as a significant development which “will effectively limit the skyrocketing costs of discovery.”[FOOTNOTE 1] The Rule and its promotion as a cost-saving panacea have no doubt raised expectations among clients and courts alike.
As a rule of evidence, FRE 502 is significant because it (a) resolves conflicts among federal courts concerning the effect of voluntary and inadvertent productions of privileged material and (b) imposes federal evidentiary rules on state courts.[FOOTNOTE 2] FRE 502 will not meaningfully reduce the costs of discovery, particularly in cases involving huge e-discovery obligations, related investigations by state government entities, and “asymmetric” discovery obligations (where one party has to produce a tremendous number of documents and the other does not) for three reasons:
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