Answer Maven

On September 18, 2008 President Bush signed into law S. 2450 which included a new Federal Rule of Evidence 502.  The bill provides a bit of clarity in the murky E-Discovery waters of inadvertent disclosure.  It applies to all discovery but as we all know most information is created and stored electronically now and thus the clarification for e-discovery provided by this rule is welcomed.

An October 8, 2008 law.com posting by Robert A. Schwinger and Eric Twiste provides a good summary of the key provisions.  The highlight seems to me to be that inadvertent disclosure provides for reasonableness in both preventing and rectifying inadvertent disclosure.  I’m sure there will be test cases to push the limits of reasonable but this rule does seem to provide much needed clarity on the issue as it applies in e-discovery.  Using automated systems to screen for key words and concepts appears to be considered a part of the “reasonable” step concept.  Perhaps this will even move forward efforts to reduce the cost of e-discovery, although the costs can be exponential and thus reduction may only seem to be a drop in the bucket.

Editor Note:  I am not an attorney and thus my interpretation on Rule 502 is that of an information consultant interested in the topic of E-Discovery.