Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502

Protection of privilege and work product material is costly and complex when it is buried in voluminous ESI.

An opinion of the Hon. Paul W. Grimm, Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005), prompted Congress to change the law and enact Fed.R.Evid. 502.

Fed.R.Civ.P. 26(b)(5) created the “clawback” process; however, Judge Grimm pointed out that the emperor had no clothes because a procedural rule could not change the substantive law of privilege.  Thus, Judge Grimm wrote in Hopson, 232 F.R.D. at 234, that, “[a]bsent a definitive ruling on the waiver issue, no prudent party would agree to follow the procedures recommended” in the procedural clawback rule.[1]

Congress enacted, and the President signed, a statute – – Fed.R.Evid. 502 – – that provided substantive protection.  Hopson is cited several times in the Advisory Committee Notes to that Rule.

While – in the contexts of attorney-client privilege and work product doctrine – Hopson has been superseded by Fed.R.Evid. 502, due to the limited scope of that rule, it retains viability in many other contexts, such as the protection of trade secrets.  M. Berman, “The Continuing Utility of the Hopson-Immunized Clawback, in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020),  Chap. 19.

History is important.

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[1] The Court’s decision is discussed in greater detail in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 369, passim.