June 04, 2012

In this article, Jenner & Block Partner Robert L. Byman discusses Federal Rule of Evidence 502 and his own recent epiphany on the rule following a discussion with Judge Lee Rosenthal of the Southern District of Texas, who chaired the Rules Advisory Committee that drafted the rule. According to Mr. Byman, “Rule 502(d) allows litigants to save the time and cost of exhaustive privilege review by reducing the risk of waiver for a reduced review.” Mr. Byman asserts that the rule may be “much more.” He observes, “It is nothing less than a congressional pardon for gross negligence—a ‘get out of jail free’ card that lets litigants forgo privilege review altogether without fear of waiving privilege. Well, maybe.”