How Will Upcoming Federal Rules Changes Affect the Privilege Waiver Analysis?

January 11, 2006

A change in Fed. R. Civ. P. 26(b)(5)(B) scheduled to take effect next summer will require a party receiving privileged or work product documents claimed to have been inadvertently produced by the other side to hold those documents until a court analyzes the situation. This sounds good, but the change may have little if any real impact.

In Hopson v. Mayor & City Council of Baltimore, Civ. A. No. AMD-04-3842, 2005 U.S. Dist. LEXIS 29882 (D. Md. Nov. 22, 2005), a magistrate judge correctly noted that the new federal rule simply describes a process – leaving any waiver issue up to a reviewing court. Because some courts take an unforgiving view of any inadvertent production of privileged documents, litigants in those courts will still lose their protection.

It looks as if the new federal rules changes will not provide much comfort to litigants hoping for some certainty in the case of inadvertently produced privileged documents (especially those released as part of the increasingly massive production of electronic documents).