From Sen. Leahy's site:
Leahy-Specter Bill To Amend Federal Rules
For Discovery Process Heads To President For Signature
WASHINGTON (Monday, September 08, 2008) – Legislation introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.) today passed the House of Representatives and is headed to the President’s desk to be signed into law. The bill amends the Federal Rules of Evidence (FRE) to address the inadvertent waiver of the attorney client-privilege. The bill passed the Senate in February.
The legislation establishes a new federal rule of evidence, FRE 502, which will help to minimize the costly and time consuming process of reviewing every e-mail and other document requested in discovery to ensure that there is no accidental disclosure of communications protected by the attorney-client or work-product privilege. The Leahy-Specter legislation has been examined and endorsed by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, and the Advisory Committee on Evidence Rules.
In recent years, the dramatic increase in the use of email and other electronic media has forced parties to spend billions of dollars and countless hours to guard against the unintentional release of privileged communications. Without rigorous, line-by-line examination of materials, parties risked waiving privilege not just on information contained in a single document, but also on any document that refers to the subject that would have been otherwise privileged.
“I’m pleased the House has now passed this important legislation,” said Leahy. “The process of discovery was antiquated for the information age. Inflating litigation costs and outsourcing the review of thousands of documents is simply not the answer. When enacted, this legislation will address the new realities of today’s lines of communication, and reduce the burdens associated electronic discovery. I hope the President will quickly sign this bill into law.”
“Current law on attorney-client privilege varies across jurisdiction, and is responsible in large part for the rising costs of discovery—especially electronic discovery,” Senator Specter said. “Right now, a single inadvertently disclosed document can result in waiving the privilege not only as to what was produced, but as to all documents on the same subject matter. Such waivers will not just affect the case in which the accidental disclosure is made, but could also apply in other cases filed subsequently in State or federal courts.”
The Leahy-Specter bill protects parties who take reasonable steps to review documents, and who ask for the return of inadvertently produced information in a timely manner. The legislation also gives federal judges the ability to enforce agreements between parties requiring the return of privileged communications inadvertently shared during discovery, and binds the parties to the agreement in future state and federal litigation involving the same material. Changes to rules modifying evidentiary privileges must be approved by Congress before they are made effective.