Memorandum to Advisory Committee Members Provides Valuable Background on Proposed ER 502, and Responds to Comments Already Received

In advance of their April 24-25, 2006 meeting, members of the Advisory Committee on the Federal Rules of Evidence received a memorandum prepared by the Reporter (Daniel J. Capra, Reed Professor of Law, Fordham Law School) and Professor Kenneth S. Broun (University of North Carolina School of Law), a consultant to the Advisory Committee. The memorandum, available here, provides interesting background on the proposed Evidence Rule 502. The Advisory Committee has not yet taken any action on the proposed rule.

In its opening pages, the memorandum describes six “fundamental principles” upon which there appeared to be substantial agreement among Advisory Committee members at their last meeting:

1. Uniform rules on waiver are required, so that parties are able to predict in advance the consequences of litigation conduct.

2. The waiver rules must be uniform at both the federal and the state level. If, for example, conduct does not constitute a waiver in federal practice but does so in a state court, parties would have no assurance that information protected by privilege or work product will remain protected.

3. Subject matter waiver should be limited to situations where fairness requires such an extreme result.

4. Parties should be able to, and encouraged to, cooperate with government investigations by turning over protected material without risking a finding that the cooperation constitutes a waiver in private litigation.

5. When disclosure is by mistake, a waiver should be found only if the disclosing party was negligent in production and in failing to seek return of the protected material.

6. In addition to the protection provided by a default rule, litigants should be able further to reduce the costs of pre-privilege review by additional terms contained in court-entered confidentiality orders; for such orders to be protective, they must preclude a finding of waiver in any court.

The memorandum contains five parts: (1) Professor Broun’s memo on the case law concerning waiver, with a few comments from the Reporter interspersed; (2) Professor Broun’s memo concerning the authority necessary for implementing a waiver rule that will bind state courts; (3) Professor Broun’s memo on the justification for a fairness-based subject matter waiver test for work product; (4) a discussion of comments received on proposed ER 502 so far; and (5) a discussion and explanation of two important drafting choices made in preparing the draft rule for the Committee’s consideration.