Oops! I Did It Again: Unintentional Waivers of Privilege Under FRE 502
The interplay among electronic discovery, Federal Rule of Evidence 502 and the inadvertent production of privileged documents.
April 30, 2015 at 10:00 AM
8 minute read
For many counsel, modern ediscovery is a veritable Scylla and Charybdis.
[E]lectronic document discovery may encompass hundreds of thousands, if not millions, of electronic records … [and] record-by-record preproduction privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation ….
Hopson v. City Council of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005). Yet, the inadvertent production of privileged documents “is a specter that haunts every document intensive case” with it the risk of a waiver of privilege. Ciba-Geigy Corp. v. Sandoz, 916 F. Supp. 404, 410 (D.N.J.1995).
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