The Federal Rule of Evidence (FRE) 502, eDiscovery and Attorney-Client Privilege: What You Need to Know in 2017
Protecting the attorney-client privilege is critical for effective representation. With the prevalence of electronic communication comes an increased risk of accidentally producing privileged information. Fortunately, there are solutions to these kinds of nightmare. The Federal Rule of Evidence (FRE) 502 can help attorneys ensure that privilege is protected against and limit the impact of inadvertent disclosure of privileged materials. However, FRE 502 is often underutilized and not well understood.
In this LIVE Webcast, a panel of distinguished professionals and thought leaders will discuss the fundamental aspects of FRE 502. The speakers will help counsel leverage the opportunities offered by FRE 502 to preserve the privilege and confidentiality of work product.
Some of the major topics that will be covered in this course are:
- An Overview of FRE 502
- FRE 502 and Inadvertent Disclosures
- FRE 502(e) Clawback Agreements
- Important Case Law Regarding FRE 502 and Clawback Agreements
- Best Practices
Brown & Connery, LLP
- Practical applications of F.R.E. 502 to civil discovery
- Preventative measures for avoiding F.R.E. 502 waiver issues
- Interaction of F.R.E. 502 with recent changes to Federal Rules of Civil Procedure
Stewart Bernstiel Rebar Smith
- The “strict” or “traditional” approach which mandates that an inadvertent disclosure always results in a waiver.
- The “subjective intent” approach, which is that an inadvertent disclosure never results in a waiver unless the party protected by the privilege intended to waive it.
- The “middle” or “balancing of factors” approach, which calls for “a balancing test to determine whether an inadvertent disclosure may be found to constitute a waiver.”
- Under the “balancing factors” approach, a court will consider:
- The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production;
- The number of inadvertent disclosures;
- The extent of the disclosure;
- Any delay and measures taken to rectify the disclosure; and
- Whether the overriding interests of justice would or would not be served by relieving the party of its error.
King & Spalding LLP
- Post-Production Privilege Assertions And The Federal Rules of Civil Procedure
- Federal Rule of Evidence 502
- Structure of FRE 502
- Intentional Disclosures and Waiver
- Inadvertent Disclosures And Waiver
- FRE 502 Agreements and Orders
- Considerations for 502(d) Orders
Who Should Attend:
- Attorneys General
- Legal Counsel
- Legal Advisers
- Civil and Criminal Litigators
William F. Cook is a partner with Brown & Connery LLP in Westmont, New Jersey. He concentrates his practice in civil trial and appellate litigation in various areas, including civil rights and discrimination, municipal liability, insurance coverage, commercial litigation, and employment-related claims. He has represented individuals as well as private and public entity clients, including professionals, police officers, police departments, municipal and county governments, political subdivisions, and businesses. He has successfully handled claims in all of these areas, and provides ongoing consultation and training to clients in these matters. He also provides regular counseling concerning electronic discovery, cyber preservation, internal investigations, labor matters, and compliance.
Mr. Cook frequently serves as a speaker on various areas of his practice, including civil case law trends and updates, federal litigation, pretrial preparation, and employment matters. He has spoken at seminars with the National Business Institute, the Camden County Bar Association, and the Association of Federal Bar of New Jersey. He has also produced a television program for the Camden County Bar Association, “Legally Speaking”, and he has served as an adjunct professor of law at Rutgers-Camden Law School for the “New Jersey Practice” course.
Mr. Cook has served on the New Jersey Supreme Court Rules of Evidence Committee since 2010. He has served as the chair of the Government Records Subcommittee as well as the chair of the Inadvertent Disclosure Subcommittee. He has drafted several Subcommittee reports and proposed amendments to the New Jersey Rules of Evidence with respect to electronic discovery issues.
Mr. Cook is the co-chair of the Civil Practice Committee and the the Employment Law Committee of the Camden County Bar Association. He is also a Trustee of the Association.
Mr. Cook was admitted to practice in New Jersey and Pennsylvania in 2003. He is also admitted to practice in the Supreme Court of the United States, the Third Circuit Court of Appeals, the United States District Court for the District of New Jersey, and the United States District Court for the Eastern District of Pennsylvania.
Prior to joining the firm, Mr. Cook served as a judicial law clerk to the Honorable Michael Patrick King, Presiding Judge of the Appellate Division of the New Jersey Superior Court. Mr. Cook also served as a Deputy Attorney General for the State of New Jersey. Mr. Cook graduated summa cum laude and Phi Beta Kappa from the University of Pennsylvania in 2000 with a bachelor's degree in economics and political science. He earned his law degree from the University of Pennsylvania Law School in 2003.
William F. Cook is a partner with Brown & Connery LLP in Westmont, New Jersey. He concentrates his practice in …
George McClellan is a partner in the firm practicing in the area of complex commercial litigation. With diverse experience in complex commercial class action litigation, a significant portion of his practice focuses on managed care litigation, dispute resolution, and regulatory compliance as well as complex insurance coverage issues and disputes, and enterprise-wide electronic data analysis and retention.
George has led numerous teams of attorneys and consulting agencies
George was a senior associate with the international law firm Morgan, Lewis & Bockius, LLP from 2003 through 2010 where he practiced nationally in the area of complex class action commercial litigation. George previously practiced with a renowned boutique firm in Princeton, New Jersey that focuses on complex coverage disputes. George previously served as a law clerk in the Superior Court of New Jersey Appellate Division and Chancery Division.in analyzing electronic data and developing legal strategy in high-profile class action litigations and state and federal investigations for Fortune 500 companies in a wide array of industries with billions of dollars in potential liability. George has a breadth of experience in various insurance industries, including health, cyber liability, workers’ compensation, commercial general liability, and errors and omissions.
In addition, George has counseled numerous Fortune 500 companies regarding how to manage their records and technological infrastructure. He has developed multiple-tiered electronic discovery response plans and record retention policies and schedules for numerous companies. George also has trained companies in implementing and enforcing record retention policies.
George is admitted to practice in the State of New Jersey, the Commonwealth of Pennsylvania, the United States District Court for the District of New Jersey, and the United States Court of Appeals for the Third Circuit.
George McClellan is a partner in the firm practicing in the area of complex commercial litigation. With diverse experience in …
Arthur is a commercial and product liability litigator with experience in all phases of litigation in state and federal courts. For more that fifteen years, his practice has focused on discovery issues, attorney-client privilege and work product protection, and the discovery of electronically stored information in complex litigation. As National Discovery counsel for corporations, he has regularly provided legal advice to in-house and outside counsel concerning attorney-client privilege, work product, and discovery issues, including the collection, preservation, review and production of electronically stored information. He has defended attorney-client privilege and work product claims in numerous federal and state courts throughout the country. He frequently speaks on electronic discovery and privilege.
Arthur is a commercial and product liability litigator with experience in all phases of litigation in state and federal courts. …
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Method of Presentation:
Experience in civil litigation
NASBA Field of Study:
Specialized Knowledge - Technical
NY Category of CLE Credit:
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About Zapproved, LLC
Founded in 2008 in Portland, Ore., Zapproved, LLC. is a pioneer in developing cloud-hosted software for corporate legal departments. The Z-Discovery Platform returns power to in-house corporate legal teams and helps them navigate electronic discovery with minimal risk and cost, and it sets new standards for scalability and intuitive design. The company’s flagship product, Legal Hold Pro, is widely adopted by Fortune 500 and Global 2000 corporations and won the 2016 Legaltech News Innovation Awards for Best E-Discovery Legal Hold Product, and the company was named as a “vendor to watch” in the 2015 Gartner Magic Quadrant for E-Discovery.
About Brown & Connery, LLP
Brown & Connery, LLP, was founded by Horace G. Brown, a preeminent trial lawyer who began practicing law in Camden, New Jersey, in 1928, and Thomas F. Connery, Jr., a distinguished litigator. Since its inception, the firm has continued to evolve and expand to meet the challenges of increasingly complex legal issues in a rapidly changing society. Brown & Connery is rated "AV" by Martindale-Hubbell, the highest rating, and it is one of the oldest law firms in southern New Jersey. The firm presently practices throughout the state of New Jersey and maintains offices in Westmont, Woodbury and Camden, New Jersey. The firm also practices in Pennsylvania and maintains an office in Philadelphia.
The law firm's reputation for thoroughness, quality of legal services and integrity was established by its founders. The firm's attorneys and dedicated support staff continue a long tradition of providing quality legal services to its clients. The Brown & Connery philosophy is to maintain the highest ethical and intellectual standards of representation while providing a wide range of legal services to its clients.
Brown & Connery is proud to have among its attorneys and former attorneys those who have been appointed to serve as a judge of the United States District Court for the District of New Jersey, three judges of the New Jersey Superior Court, an attorney general of the State of New Jersey, a dean of the International Academy of Trial Lawyers, several members of the American College of Trial Lawyers, a state senator, a state assemblyman, a chairman of the State Commission of Investigation, the public advocate, a chairman of the New Jersey Supreme Court Board of Attorney Certification, a chairman and member of the New Jersey State Board of Bar Examiners, a Chapter 13 standing trustee for the United States Bankruptcy Court District of New Jersey, two presidents of the Camden County Bar Association and a president of the Camden County Bar Foundation. The firm's current partners include fellows of the prestigious American College of Trial Lawyers, and several of our partners are Certified Civil Trial Attorneys by the New Jersey Supreme Court.
About Stewart Bernstiel Rebar Smith
SBRS was formed upon the principle that long-term relationships flow naturally from recognizing that the clients are the firm’s true partners. SBRS understands that problems come in all shapes and sizes. The firm’s lawyers have tried hundreds of cases to successful verdict, and have served as lead counsel in some of the insurance industry’s most high profile cases.
It is critical to note, however, that enthusiasm in litigating challenging cases is tempered with the common sense knowledge that expedient and cost-effective resolutions are often the best way to serve clients.
By taking time to understand each business, and by engaging in innovative solutions, SBRS can often assist you in resolving matters before they lead to extensive costs or substantial exposure.
About King & Spalding LLP
King & Spalding is an international law firm that represents a broad array of clients, including half of the Fortune Global 100. The firm’s practice spans the full range of litigated, regulatory and transactional work, with substantial expertise in antitrust, energy, environmental, finance, financial restructuring, government advocacy and public policy, healthcare, intellectual property, international arbitration, government investigations, international trade, life sciences, mergers and acquisitions, private equity, project development, real estate, tax and tort matters. The firm has more than 1,000 lawyers in 19 offices in the United States, Europe, the Middle East and Asia.