New Rule 502 and Inadvertent Disclosures

Best Practices for Preserving the Attorney-Client Privilege

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, March 18, 2009

Program Materials

This seminar will examine the new federal rule of evidence, how the courts are interpreting the rule, the implications for litigation practice, and the best methods for protecting attorney-client privilege.

Description

The new Federal Rule of Evidence, Rule 502, aimed at controlling the skyrocketing costs of privilege reviews of electronically stored information, is hailed as the most important change to the law governing e-discovery since the 2006 amendments to the Federal Rules of Civil Procedure.

Rule 502 is aimed at clarifying and limiting the impact of a party's disclosure of privileged or work-product protected documents. By reducing the unintended consequences of producing a privileged document, parties should not have to spend as much time and money reviewing documents for privilege.

A myriad of issues remain uncertain. Litigators already anticipate courts will vary in how they interpret the “reasonableness” standard for waiver of privilege due to unintended disclosures and under what circumstances undisclosed documents "ought in fairness be considered.”

Listen as our panel of litigation attorneys examines Rule 502, how it is being applied in and interpreted by the courts, the implications of the new rule for litigation, and best practices for preserving attorney-client privilege even beyond the protections of the new rule.

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Outline

  1. Rule 502 and its application
    1. Protection for inadvertent disclosure
    2. When it is used
    3. Balancing test
    4. Enforcing the clawback agreements of Rule 26(b)(5)
  2. Court treatment and implications of the new rule on litigation
    1. Application of rule in litigation
    2. Relationship between federal and state courts in complex litigation
    3. Court treatment
    4. Balancing test
  3. Best practices for preserving the privilege

Benefits

The panel will review these and other key questions:

  • What are the new protections provided by Rule 502 — and how can counsel best take advantage?
  • How will the new rule impact ongoing and future litigation, including complex cases in federal and state courts with the same sources of discovery?
  • What practical strategies can counsel employ to reduce the cost and burden of privilege review while maintaining the attorney-client and work product privileges?
  • What are the best practices for counsel to go beyond Rule 502 to reach agreements anticipating intentional waivers and inadvertent disclosures and to obtain a court order for such agreements?

Faculty

David M. Greenwald
David M. Greenwald
Partner
Jenner & Block

Mr. Greenwald is a tested trial lawyer with over 27 years of commercial litigation, domestic and international...  |  Read More

Peter B. Hutt, II
Peter B. Hutt, II
Partner
Covington

Mr. Hutt represents clients in False Claims Act and fraud litigation. He has testified before Congress concerning...  |  Read More

Todd L. Nunn
Todd L. Nunn
Partner
K&L Gates

He practices litigation in state and federal court on behalf of corporate and governmental clients. He advises clients...  |  Read More