Advisory Committee on Federal Evidence Rules to Consider New Rule Codifying Waiver of Privilege by Disclosure

Pike and Fischer’s Electronic Evidence Update, a service of Pike and Fischer Digital Discovery and e-Evidence, reported today that the Advisory Committee on the Federal Rules of Evidence will consider a new rule during a meeting on April 24. Proposed Federal Rule of Evidence 502 codifies waiver of privilege and work product protection by disclosure, and includes exceptions to such waiver. An exception for inadvertent disclosure addresses the concern that the cost of privilege review has become prohibitive in cases involving electronic discovery. The rule also codifies the controlling effect of (1) court orders regarding the preservation or waiver of privilege or work product protection and (2) party agreements regarding the effect of disclosure. Court orders are made applicable to non-parties, and party agreements regarding the effect of disclosure are made binding on the parties to the agreement but not on other parties unless the agreement is incorporated into a court order.

The text of the rule is as follows:

Rule 502. Attorney-Client Privilege and Work Product; Waiver By Disclosure

(a) Waiver by disclosure in general. – A person waives an attorney-client privilege or work product protection if that person – or a predecessor while its holder – voluntarily discloses or consents to disclosure of any significant part of the privileged or protected information. The waiver extends to undisclosed information concerning the same subject matter if that undisclosed information ought in fairness to be considered with the disclosed information.

(b) Exceptions in general. – A voluntary disclosure does not operate as a waiver if:

(1) the disclosure is itself privileged or protected;

(2) the disclosure is inadvertent and is made during discovery in federal or state litigation or administrative proceedings – and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B); or

(3) the disclosure is made to a federal, state, or local governmental agency during an investigation by that agency, and is limited to persons involved in the investigation.

(c) Controlling effect of court orders. – Notwithstanding subdivision (a), a court order concerning the preservation or waiver of the attorney-client privilege or work product protection governs its continuing effect on all persons or entities, whether or not they were parties to the matter before the court.

(d) Controlling effect of party agreements. – Notwithstanding subdivision (a), an agreement on the effect of disclosure is binding on the parties to the agreement, but not on other parties unless the agreement is incorporated into a court order.

(e) Included privilege and protection. – As used in this rule:

1) “attorney-client privilege” means the protections provided for confidential attorney-client communications under either federal or state law; and

2) “work product” means the immunity for materials prepared in preparation of litigation as defined in Fed.R.Civ.P. 26 (b) (3) and Fed.R.Crim.P. 16 (a) (2) and (b)(2), as well as the federal common-law and state-enacted provisions or common-law rules providing protection for attorney work product.