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Federal E-Discovery: Kansas Case Casts Doubt on Usefulness of Rule 502
October 27, 2009 Full PDF
Litigation partners Chris Boehning and Dan Toal's article, "Kansas Case Casts Doubt on Usefulness of Rule 502," was published in the October 27 issue of the New York Law Journal. The article discusses Spieker v. Quest Cherokee, LLC, a recent Kansas case that is among the first to interpret recently enacted Federal Rule of Evidence 502. The authors conclude that the decision is at odds with the language and purpose of FRE 502. The decision states that parties agreeing to "quick peek" and "clawback" agreements must engage in a "reasonable" pre-production privilege review consistent with the standard set in FRE 502(b) before a court can entertain an order of the type contemplated by FRE 502(d). The authors point out that the commentary to FRE 502(d) says that the purpose of the rule was to permit parties to gain the protection of such an order so that they can exchange materials without waiver of privilege "irrespective of the care taken by the disclosing party." Litigation associate Jeffrey Newton assisted in the preparation of this article.