President Signs S. 2450 (New Evidence Rule 502) Into Law: September 19, 2008

On September 19, 2008, the President signed S. 2450 into law, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence (Pub. L. No. 110-322, 122 Stat. 3537). The House had approved S. 2450 on September 8, 2008. The Senate had approved S. 2450 on February 27, 2008. See Sen. Rept. No. 110-264.

The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection. The new rule will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment.

Evidence Rule 502 is not a “home free” rule. Reasonable steps must be taken to prevent inadvertent disclosure and to rectify any such disclosure.More specifically, according to Congresswoman Sheila Jackson-Lee, in her statement in the Congressional Record,

"The new rule protects the confidentiality of privileged information against waiver in several ways. It protects information inadvertently disclosed in discovery, as long as the party has taken reasonable efforts to avoid disclosing privileged information and, upon learning of disclosure, promptly takes reasonable steps to rectify it.

It protects against a waiver extending to other, undisclosed documents except where privileged information is being intentionally used to mislead the fact finder to the disadvantage of the other party, so that fairness requires that other information regarding the same subject matter be available.

And it authorizes courts to enter orders enforceable in all jurisdictions permitting parties to make initial discovery exchanges efficiently without waiving the right to appropriately assert privilege later for documents culled for actual use as evidence.

This is sort of a back-up protection. This is your guarantee. This is an assistance to the idea of protecting privilege. This is extremely important, in that vast majority of documents exchanged in discovery, in some cases running to millions of pages, ultimately prove to be of no interest."

Just as important as what the new Rule is about is what the new Rule is not about. As Jackson-Lee noted,

"Importantly, the rule does not alter the law regarding when the attorney-client privilege or work product protection applies in the first instance. [Instead,] [i]t is narrowly targeted to address the question of when the specified kinds of litigation-related disclosures do or do not operate as a waiver of the privilege that would otherwise apply."

Also, as noted by the Federal Evidence Review, the new Rule does not contain a selective waiver provision, which was requested by the Judicial Conference, but which was apparentlhy too controversial to find its way into the completed Rule.


S. 2450 is identical to Evidence Rule 502, as approved by the Judicial Conference of the United States in September 2007. Congress, with the consent of the Judicial Conference, added additional language to the explanatory note accompanying Rule 502. The "Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence" is posted at http://www.uscourts.gov/Congressional _Record_re_S2450.pdf.

Unlike other amendments to the federal rules of practice, procedure, and evidence that take effect automatically unless Congress acts affirmatively to modify, defer, or reject it, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See 28 U.S.C. § 2074(b).

Edmond Scientific Company Acquires E-Discovery Vanguard: Access Litigation

My friend Daniel Walschmidt had some exciting news last week. As the CEO of Access Litigaiton and the author of a superb motivational blog "the DEW VIEW ; Daniel is a driving force in the litigatin support industry and has embraced technology driven discovery methods more than anyone I know.

Before we get to the meat of his news - well how about an appetizer? Here's Daniels latest blog entry. Simple. Concise. Precise. Right on!!


Fighting for our dreams…

On the subject of dreams:

“The greatest discovery one can make is that NOTHING is impossible…”

Take 2 minutes to let this sink in. It nothing is not-doable then anything we imagine to be doable can be our future reality… The only thing that stands in the way of that realization is our determintaion to make it that way

and now the meat!

FAIRFAX, Va., Aug. 28 /PRNewswire/ -- Edmond Scientific Company (ESC) has completed the acquisition of Access Litigation Support Services (ALSS). Under the terms of the agreement, ESC purchased existing EDD (Electronic Data Discovery) software including NatiVIEW Analytics 2.0 web-hosting solution, as well as proprietary data processing software, both award winning products developed by ALSS. In completing the acquisition, ESC not only complements its flourishing solutions-based litigation support business, but accelerates a strategy of service leadership through technological innovation in a rapidly growing e-discovery market.
"Initially, when we learned more about the solutions offered by ALSS, we were impressed by the gracefulness and power of the software's native file review, search, analysis, and foreign language processing features, as well as the potential to leapfrog our other development efforts and provide the foundation for our hosted review solution," states ESC Founder and CEO, John Pitale. "In keeping with our expressed goal to revolutionize the litigation support industry, we valued Access' market position over other possible alternatives. We intend to use our systems engineering-oriented approach for developing stable, robust solutions specifically tailored for client business processes, quickly building upon the complementary technological strengths and software assets of both companies, so to become a trail-blazer on the EDD frontier."

Washington, DC-based Access Litigation "couldn't be more pleased with this purchase," Access CEO Daniel Waldschmidt concedes. "Starting as a Mom-n-Pop organization, we took Access Litigation as far as we could. The growth of the company, in conjunction with continued software development, required new ideas and mature processes to be able to extend well beyond the e-discovery solutions currently available in the market. Of all the interested buyers, ESC was favored because of their ability to provide complementary skills and new discipline, while maintaining the developmental integrity of our products. We are excited for the future of e-discovery as we move forward with this deal."

About Edmond Scientific Company

Edmond Scientific Company (http://www.edmondsci.com/ ) is a professional services firm that creates innovative business solutions for both government and commercial customers. ESC's systems engineering expertise began with the design and development of mission-critical systems and software for the Department of Defense, and has since applied those skills to both the litigation support and health informatics sectors.

Edmond Scientific Company

HURRICANE GUSTAV EMERGENCY RESOURCES

The federal and state governments bear primary responsibility for disaster recovery, but the response by FEMA to Hurricanes Katrina and Rita well frankly was grossly mismanaged and tragically inadequate. Hurricane Gustav hit the Gulf Coast today - the following non governmental relief agencies and community-based organizations -- with records of responsiveness and accountability -- are working on the ground now to provide disaster relief and assistance for Hurricane Gustav evacuees. Please visit their websites to find out how you can help with donations of emergency supplies and funds.


Catholic Charities USA's Disaster Response Team has been deployed to the Gulf Coast ahead of Hurricane Gustav, ramping up efforts to respond to the potentially devastating storm. Once on the ground, the team will be working with the local Catholic Charities agencies in the region to preposition community resources sites. After the storm, these sites will provide water, basic food essentials, clean up supplies, personal care kits, and other items to meet the communities' recovery needs. To contribute to Catholic Charities USA's response efforts: Call (800) 919-9338

Direct Relief International, which provides humanitarian medical relief, is sending additional relief materials to complement its pre-positioned hurricane preparedness materials distributed in high-risk areas. In the three years since Katrina and Rita, Direct Relief has supported safety-net clinics and community health centers along the Gulf Coast with $47 million in medical material aid and $4.6 million in cash assistance. Direct Relief is communicating frequently with healthcare partners treating people affected by Gustav to deliver the most effective aid possible, both in the U.S. and in the Caribbean.

Hands on New Orleans is working with local and state agencies to prepare and ensure for a coordinated immediate response. Donations of funds to operate a volunteer reception center and to deploy an early responder team to meet immediate needs are necessary at this time; click here. To donate goods or products click here.

The Louisiana Disaster Recovery Foundation (LDRF), is expediting funding to local agencies along the Gulf Coast to help with the mandatory evacuation ahead of Hurricane Gustav. Already, LDRF has helped the Lafayette Restoration Center move seniors and people with special needs out of New Orleans and to safety, and there are many more local organizations LDRF is providing emergency assistance to. You can help. Visit the LDRF website to find out how: to donate, click here.

Operation USA, an international disaster relief agency, is partnering with established networks of community health clinics which are working around the clock to anticipate needs resulting from a major storm with 15-30 foot storm surges necessitating the possible evacuation of millions of people. Operation USA is appealing to individuals, foundations and companies for money and appropriate relief supplies to enable it to respond effectively when Hurricane Gustav makes landfall.

Southern Baptist Disaster Relief (SBDR) requests for feeding capacity has now doubled from 310,000 meals per day to more than 600,000 as the Gulf Coast braces for the possibility of a Category 4 Gustav. Some 113 of 115 Southern Baptist Disaster Relief feeding units have been put on alert to mobilize along the Gulf Coast states a day or two in the wake of hurricane landfall. Several larger shelters are at ready in Texas where four Texas Baptist Men Disaster Relief feeding units have deployed. Other sites will be determined as landfall nears.

World Vision, an international Christian relief and development agency, has readied emergency supplies in Picayune, Mississippi, with several truckloads of additional goods on standby in Dallas, Los Angeles and other U.S. locations. The organization's domestic disaster response teams are also on full alert today, with expert staff prepared to deploy from around the country early next week should Hurricane Gustav prove destructive.

New Litigation Support Legal Software Review Site Launched

My friend Charles Skamser had an piece on his website that caught my attention today. His story pointed me to a newly launched software review website aimed exclusively at the litigation support industry.

As usual Charles is ahead of the curve and his blog is always an interesting read due to Charles' inquisitive nature and spot on analytic abilities. Anyway - if you are reading my blog -especially on Labor Day = well you probably would find some interesting and informative independent information on Charles web blog - "the e-discovery paradigm shift


Anyway I digress = the litigation and software review website link is below


http://litireviews.lexbe.com/index.aspx?Query=Electronic%20Discovery


Basically this is a website dedicated to offering a comprehensive collection of free reviews of legal and litigation software and other technology offered to legal and litigation professionals. With over 100, recent full-text reviews included, it is the largest free collection of legal software and technology reviews targeted to legal and litigation professionals.


LitiReview includes the software or product name, review title, author, a summary of the findings or conclusions, the publication, and year published. LitiReviews is text-searchable to allow users to find articles by applicable keywords.

Reviews in LitiReviews are organized into software or technology categories, including accounting, case management, document automation, document management, document repository, document security, electronic discovery, litigation management, office productivity, optical character recognition (OCR), practice management, time & billing, depositions & transcripts, trial presentation and server virtualization.

Software programs reviewed include Adobe Acrobat, Amicus Attorney, Caselogistix, CaseMap, Concordance, Iblaze, Isys, ImageDepot, Hotdocs, Lexbe, Livenote, Mac, Predator, Quickbooks, Sanction, Tabs3, Textmap Time Matters, Timemap, Trial Director, Workshare Protect, Worldox and Vista.