New Federal Rule Of Evidence Simplifies Complex Privilege Issues Associated With E-Discovery

Article by Christopher J. Garvey , David J. Goldstone , Ira J. Levy , Paul E. Nemser , Brenda R. Sharton and William F. Sheehan

On September 19, 2008, President Bush signed into law a bill intended to ease certain burdens of electronic discovery. The statute creates a new Federal Rule of Evidence (Rule 502) to address potential waivers of attorney-client privilege and attorney work product protection. Waivers of privilege have become an increasingly important issue because of the large volume of documents produced under the modern regimes of electronic discovery. As Senator Patrick Leahy (D-VT), Chairman of the Judiciary Committee, stated when introducing the bill, the discovery process "has been made increasingly difficult with the growing use of email and other electronic media."