FEDERAL COURTS LAW REVIEW -- 2006 Fed. Cts. L. Rev. 6
SAILING ON CONFUSED SEAS:
PRIVILEGE WAIVER AND THE NEW FEDERAL RULES OF CIVIL PROCEDURE
By John M. Facciola
Abstract
Because so much information can be stored in a computer's memory,
a review of a client's electronic records for discovery purposes
can result in staggering costs and the inadvertent disclosure of
privileged material. While lawyers have created two kinds of agreements
they hope will reduce the costs of such review and prevent any claim
that their actions constitute a waiver of any privilege by their
clients, the new Federal Rules of Civil Procedure neither prohibit
nor authorize such agreements and grant only limited relief to the
party who has produced privileged material and seeks its return.
Moreover, agreements between counsel as to privilege waiver cannot
bind third parties. In one significant decision, a magistrate judge
concluded that, in certain circumstances, parties to such a court-approved
agreement will be protected from claims by third parties that the
agreement constitutes a waiver of any privilege. That decision generated
a proposal to enact a new Federal Rule of Evidence that achieves
the same result. Without such a rule, the costs of privilege review
will remain high, unless there is either new technology that could
segregate privileged material from other information at its creation
or American businesses adopt and enforce reasonable and well-articulated
policies requiring their employees to maintain privileged material
separate from all other electronic records.