New Evidence Rule 502: Little Relief From Rising Discovery Costs

    15 December 2008
    On September 19, Public Law No. 110-322 (Senate Bill No. 2450) was signed into law, creating a new Federal Rule of Evidence 502. The aim of the new rule is to staunch the flood of litigants’ dollars flowing into massive privilege reviews of electronic and other discovery — or at least ameliorate some of the e-discovery-era costs associated with such reviews. FRE 502, titled "Attorney-client privilege and work-product doctrine; limitations on waiver," applies to all cases commenced after its enactment and all pending proceedings "insofar as is just and practicable." Because much of the new rule simply codifies already existing law established under FRE 501, which provides that unless state law applies, federal privilege decisions "shall be governed by the principles of the common law," whether it is "just and practicable" to apply FRE 502 to a pending proceeding is unlikely to prove controversial.