Texas Wesleyan Law Review
Constructive Strict-Approach to Attorney-Client Privilege in Bankruptcy: Lack of Clarity in Rule 502 Makes Its Application to Bankruptcy Unclear
Electronic discovery (e-discovery) creates issues that are fundamentally different from the issues associated with paper discovery.' In response to these differences, the United States Congress promulgated the 2006 Amendments to the Federal Rules of Civil Procedure. These amendments address a number of problems associated with e-discovery; however, they do not address many of the specific problems associated with the attorney-client privilege that arise from large amounts of electronically stored information (ESI).2 The United States House of Representatives Committee on Rules of Practice and Procedure proposed Rule 502 of Evidence (Rule 502) to address these issues. Rule 502 addresses the effects of inadvertent disclosures in discovery, and whether those inadvertent disclosures operate as waivers of the attorney-client privilege. Unfortunately, the proposed rule does not address many of the intricate situations that are present in every bankruptcy case. This Note first examines broadly the scope of ESI and e-discovery and their effect on the legal field. Next, it discusses generally the attorney- client privilege and how waiver occurs. Then this Note analyzes Rule 502 and how it addresses several problems attorneys currently face with waiver of the attorney-client privilege in e-discovery. Then, it shows how Rule 502 does not address two specific problems in the bankruptcy context. Finally, it will offer attorneys a few suggestions to insure that the client's attorney-client privilege is preserved.
Jason P. Kathman,
Constructive Strict-Approach to Attorney-Client Privilege in Bankruptcy: Lack of Clarity in Rule 502 Makes Its Application to Bankruptcy Unclear,
Tex. Wesleyan L. Rev.
Available at: https://doi.org/10.37419/TWLR.V15.I1.3