Eastern District of Pennsylvania Court First to Assess “Reasonableness” Under New Federal Evidence Rule

As reported in our September 22 eData LawFlash, “Newly Adopted Federal Rule Attempts to Address Privilege and Work Product Waiver Concerns,” Federal Rule of Evidence 502 was enacted on September 19, 2008 “to limit the consequences of inadvertent disclosure” and to codify the so-called middle-ground approach to waiver by providing that “[a]n inadvertent disclosure of privileged information does not constitute a waiver as long as the holder took reasonable steps to prevent disclosure and acted promptly to retrieve the mistakenly disclosed information.”

On November 14, the Eastern District of Pennsylvania became the first court in the land to address “reasonableness” under new Rule 502. See Rhoads Industries, Inc. v. Building Materials Corp. of America, 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008).

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