First of a two-part series.
Part two can be found here.
In Rhoads Industries v. Building Materials Corp., No. 07-4756 (E.D. Pa. Nov. 14, 2008), Judge Michael M. Baylson of the Eastern District of Pennsylvania issued the first opinion to apply newly-enacted Federal Rule of Evidence 502, which governs how privileged materials inadvertently produced in discovery are to be treated. Examination of the court’s opinion reveals, in my view, weaknesses in both the court’s analysis and the rule itself.
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