Many commentators have discussed a recent Eastern District of Pennsylvania case analyzing new Federal Rule of Evidence 502 (which became effective on September 19, 2008). Some of the analyses might unnecessarily scare practitioners involved in document discovery.
In Rhoads Industries, Inc. v. Building Materials Corp. of America, Civ. A. No. 07-4756, 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008), Judge Baylson essentially dealt with two separate issues. First, he properly determined that under new Rule 502 he should follow the multi-factor test in deciding whether plaintiff Rhoads had waived its protections by inadvertently producing about 800 documents during a massive production of electronic documents. After very carefully weighing the factors, he found that Rhoads had not waived its protections. Second, he analyzed whether Rhoads had waived its right to claim protection for about 2,000 e-mails Rhoads had withheld from production in early 2008 – but had never included on a privilege log. Judge Baylson found a waiver. Although some courts would have been more forgiving, Judge Baylson’s fairly harsh result is not out of the mainstream — Rhoads had failed to include the withheld documents on three privilege logs. Contrary to the implication in some commentator’s analysis, Judge Baylson did not order disclosure of these documents because they had been inadvertently produced.
Interestingly, Judge Baylson had to address this issue again two weeks later. In Rhoads Industries, Inc. v. Building Materials Corp. of America, Civ. A. No. 07-4756, 2008 U.S. Dist. LEXIS 96404 (E.D. Pa. Nov. 26, 2008), Judge Baylson answered Rhoads’s question about the scope of the waiver by holding that (1) Rhoads did not have to produce privileged documents that had been properly included in earlier privilege logs, but which appeared in e-mail strings for which “the most recent, top email” had not been properly logged, but (2) Rhoads had to produce privileged e-mails that had not been individually logged, but which appeared in e-mail strings for which the “top email message” in the string had been properly logged. Id. at *12. In other words, Judge Baylson applied the waiver on an e-mail-by-e-mail rather than on a string-by-string basis. Lawyers involved in electronic discovery should try to follow all of these developments.