Paul H. Beach


This Note will argue that the attorney-client privilege is justified not only by the popular instrumentalist rationales, but also by noninstrumentalist thinking. It will further argue that Federal Rule of Evidence 502 gives federal courts the tools to protect the attorney-client privilege in light of bulk data collection. Even where courts do not find that traditional modes of communication constitute reasonable steps to protect a confidential communication, general considerations of fairness—as noted in Rule 502’s committee notes—should encourage courts to uphold attorney-client privilege in future situations of bulk data collection disclosures. Part I will discuss the establishment, development, and operations of the national security surveillance and signals intelligence apparatuses in the United States. It will also examine the legal basis for state surveillance and bulk data collection programs and legal challenges to those programs with an eye toward the issue of attorney-client privilege. Part II of this Note will examine the establishment and development of attorney-client privilege and the waiver of that privilege in the United States. Finally, Part III will analyze the methods courts should adopt in considering a future case involving privileged information gathered through bulk data collection.



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