eDiscovery: Reasonable Steps Rise Again
Last week, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection - but should not be interpreted as a reason to be lax in implementing eDiscovery processes. The law stipulates that the protection is only for those that have “taken reasonable efforts to avoid disclosing privileged information and, upon learning of disclosure, promptly takes reasonable steps to rectify it.”
You might be tempted to say that we’ve already seen this news before; after all, in the Federal Rules of Civil Procedure (FRCP), there is a stipulation that organizations can “claw-back” any documents inadvertently turned over that are actually privileged. What this rule is clearly stating is that yes, there is protection of that privileged information, but the burden is again on organizations to prove that they consistently try to ensure that privileged information is not disclosed and they take immediate steps to claw-back when they realize the disclosure.
The only way to make a case for reasonable steps is to have an eDiscovery system in place that that monitors evidence across the enterprise, allows counsel to mark that evidence for privilege (and then carries that tag with the information throughout its lifecycle, e.g. so it is not treated differently in another matter down the road), and can report on the lifecycle of the information. From my POV, the news of this law is just another nail in the coffin of ignorance and/or apathy. The laws are clear that that burden is on organizations to act consistently and take the reasonable steps - technology can help with both. It ensures consistency (and reports on it) and the courts know what technology is capable of and want organizations to deploy it (and in fact find it unreasonable when they don’t).
Tags: eDiscovery, FRCP
