As researchers, we know the Williams v. Taser case is only a single data point. In research as in Euclidian geometry, we need two points in space to draw a straight line.

I recently learned about some work under way over the last year to revise the Federal Rules of Evidence (FRE) - specifically Rule 502, which deals with the waiver of attorney-client privilege and work product.

This is related to e-discovery in that privilege is waived accidentally too often in e-discovery, due to both the volume of material produced and the fact that attorneys reviewing e-discovery material for production review only the surface content of the documents and not the underlying metadata.

The proposed changes to FRE Rule 502 would set up a consistent way for waiver disclosure and claw-back of information to be handled in all jurisdictions. The committee's commentary on the new rule also suggested a way to protect accidental disclosures. This is from the committee notes on FRE Rule 502(b):

"Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken 'reasonable steps' to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant."

To me, this is the second sign that Whit and Debra were really onto something about the importance of search in trying to deal with this e-discovery issue. Good work guys! Sorry I was such a Doubting Thomas!