Federal Rule of Evidence 502, signed into law in September 2008, provides protections to parties with privileged information who unintentionally disclose privileged material. Tied, in part, to issues that arise during electronic discovery, the "measure seeks to reduce litigation costs typically arising in the process of privilege review and production. The rule establishes a presumption against subject matter waiver, resolves the issue of inadvertent disclosure, provides fo
r confidentiality orders and supports party agreements, among other issues."
This is part of the Fordham Law Roundtable Series Brought to you by The National Law Journal
Waiving Attorney-Client Privilege -- Rule 502
November 2nd, 2010, 1:00 PM EDT
Reed Professor of Law, Fordham University
Unquestionably one of the leading evidence scholars in the country, Daniel Capra has produced unrivaled and influential scholarship ranging from his authorship of leading treatises and superb articles to his important role as principal draftsman of Rule 502 of the Federal Rules of Evidence. Other accomplishments include co-authoring the first casebook on electronic discovery and digital evidence, serving as Reporter for a number of Judicial Conference Committees, including the Advisory Committee on Evidence Rules, publishing opinions as Special Master in a number of high-profile civil actions, and advising the nation's top federal judges on sentencing regulations following United States v. Booker. He also has organized a series of superb academic programs to examine cutting-edge issues in the law of evidence. As Chair of the Fordham Law clerkship committee, Professor Capra has guided efforts that have significantly increased the number of students who have obtained federal clerkships and judicial internships. Above all, he is a master teacher whose passion for and mastery of his subject have earned him Fordham Law's Teacher of the Year Award. He holds the Philip D. Reed Chair at Fordham Law School.
Judge Lee Hyman Rosenthal
U.S. District Court for the Southern District of Texas, Houston Division
Judge Lee H. Rosenthal is U.S. District Court Judge for the Southern District of Texas, Houston Division, and Chair of the Judicial Conference Committee on the Rules of Practice and Procedure, which coordinates the work of the Advisory Committees for the Federal Civil, Criminal, Evidence, Appellate, and Bankruptcy Rules. Chief Justice John Roberts appointed Judge Rosenthal to this position in 2007.
Previously, Judge Rosenthal served as a member and chair of the Judicial Conference Advisory Committee on Civil Rules. She was appointed to the Committee by Chief Justice Rehnquist in 1996. She served as chair of the Class Actions subcommittee during the development of the 2003 amendments to Rule 23. She was appointed chair of the Civil Rules Committee in 2003 and served during the "restyling" of the Civil Rules and the adoption of the electronic discovery amendments. Judge Rosenthal is a member of the American Law Institute, where she serves as an advisor for the Aggregate Litigation project and the Restatement of Employment Law (Third) and was an advisor for the Transnational Rules of Civil Procedure project. In 2007, she was elected to the ALI Council. Judge Rosenthal serves on the Board of Trustees of Rice University in Houston, Texas. Judge Rosenthal has twice been named the "Trial Judge of the Year" by the Texas Association of Trial and Appellate Lawyers. Judge Rosenthal received her undergraduate and law degrees from the University of Chicago.
Kenneth A. Gary, JD
Associate Publisher, The National Law Journal
A lawyer and journalist by training, Mr. Gary has worked extensively inside the legal community in a variety of capacities, including consulting legal research companies, marketing, advising and operating legal trade publications, and investigative and compliance work for several regulatory organizations and a Fortune 200 financial services company. Mr. Gary has received national recognition for his editorial and analytical contributions for several leading tax and corporate governance legal news publications and has had his works sourced by newspapers including The Wall Street Journal and The Washington Post.
Mr. Gary received his Bachelors of Arts degree from the University of Colorado, and his Juris Doctorate degree from the American University Washington College of Law, where he served as Editor-In-Chief of American Jurist.
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