Catagory:Trends & Emerging Issues

On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.   See our prior post from October 19, 2007 on the proposed rule.

On September 27, 2007, the Judicial Conference of the United States submitted proposed new Evidence Rule 502 to Congress through identical letters to the Committee on the Judiciary of the United States Senate and the Committee on the Judiciary of the United States House of Representatives.  The letters provide a description of the process that led to the proposed rule, an explanation of the problems sought to be addressed, the protections against waiver of privilege or work product afforded by the proposed rule, and drafting choices made by the Advisory Committee on Evidence Rules in crafting the language of the proposed rule.  The Judicial Conference recommended that proposed new Evidence Rule 502 be adopted by Congress “as a rule that will effectively limit the skyrocketing costs of discovery.”

Proposed new Evidence Rule 502 contains four main provisions.  The first codifies the majority view and protects a party from waiving a privilege if privileged or protected information is disclosed inadvertently in a federal court proceeding or to a federal public office or agency, unless the disclosing party was negligent in producing the information or failed to take reasonable steps seeking its return.  The second protects a party from waiving a privilege covering all documents dealing with the same subject matter as a document that was disclosed, unless fairness requires such an extreme result.  The third protects a party from waiving a privilege or protection if the court enters an order providing that disclosure of privileged or protected information does not constitute a waiver.  The order is enforceable against all persons in any federal or state proceeding.  The fourth provides that parties in a federal proceeding can enter into a confidentiality agreement providing for mutual protection against waiver in that proceeding, binding only the parties.

Earlier, on September 18, 2007, the Judicial Conference approved proposed Evidence Rule 502 and agreed to transmit it to Congress with a recommendation that it be enacted according to law.  At that time, the Judicial Conference considered the September 2007 Report of the Standing Committee, which explained the rationale behind the proposed rule as follows (beginning at p. 32):
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At its June 11-12, 2007, meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committees on Evidence Rules and approved proposed new Evidence Rule 502 on Waiver of Attorney-Client Privilege and Work Product, among other proposed new rules and amendments.  The Committee also approved a letter to Congress accompanying proposed new Evidence Rule 502.  (Minutes of the June 2007 meeting will be posted here when they become available.)

Previously, on May 15, 2007, the Advisory Committee on Evidence Rules had issued its Report to the Standing Committee regarding its recommendations with respect to proposed Evidence Rule 502 on Waiver of Attorney-Client Privilege and Work Product.  The Report and its supporting documents were summarized here in a May 16, 2007 post.

The Standing Committee will now transmit the proposed new rules and amendments to the Judicial Conference with a recommendation that they be approved and transmitted to the United States Supreme Court.  The proposed new rules and amendments will be available shortly and will be posted on the federal judiciary’s “Pending Rules Amendments Awaiting Final Action” page at: http://www.uscourts.gov/rules/newrules6.htm#proposed0806.

On May 15, 2007, the Advisory Committee on Evidence Rules issued its Report to the Standing Committee regarding its April 2007 meeting and its recommendations with respect to proposed Evidence Rule 502 on Waiver of Attorney-Client Privilege and Work Product.  (The 83-page Report is available here.)  The Report states that, at the April 2007 meeting, the Committee carefully considered all of the public comment received on the proposed rule, as well as other issues raised by members of the Committee.  As a result, the Committee made a number of changes to the version of proposed Rule 502 that was issued for public comment.  This new modified version of proposed Evidence Rule 502 is available here.  The Committee’s post-publication modifications to the proposed rule include the following: 

1.  Changes were made by the Style Subcommittee of the Standing Committee, both to the text as issued for public comment, and to the changes to the rule made at the April 2007 Evidence Rules Committee Hearing.

2.  The text was clarified to indicate that the protections of Rule 502 apply in all cases in federal court, including cases in which state law provides the rule of decision.

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From the "What’s New" section of the U.S. Courts Federal Rulemaking website, regarding the actions of the various Advisory Committees this spring: 

"At its April 12-13, 2007, meeting, the Advisory Committee on Evidence Rules considered public comments on proposed new Evidence Rule 502, which was published for comment in August 2006.  The advisory committee approved the proposed new rule, with modifications.  The advisory committee will transmit the proposed new rule to the Committee on Rules of Practice and Procedure with a recommendation that it be approved and transmitted to the Judicial Conference for its consideration."

We will post the modified Evidence Rule 502 here when it becomes available.

The Advisory Committee on the Federal Rules of Evidence is meeting today and tomorrow in San Diego to discuss, among other things, the proposed Evidence Rule 502 on waiver of attorney-client privilege and work product.  The Committee must determine whether to recommend proposed Rule 502 to the Standing Committee for ultimate adoption by Congress.  Portions of the Committee’s Agenda Book for the April 12 and 13, 2007 meeting relating to proposed Rule 502 are available here:

Advisory Committee on Evidence Rules, Minutes of the Meeting of November 16, 2006 (not yet approved)

Memorandum to Advisory Committee on Evidence Rules dated March 15, 2007, Re: Proposed Rule 502: Possible Changes to Rule as Released for Public Comment

This memorandum analyzes all the colorable suggestions for change to the rule as issued for public comment.

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Persons interested in the proposed new federal evidence rule addressing privilege waiver will testify before the Advisory Committee on Evidence Rules today in Phoenix, Arizona. Witnesses on today’s schedule include:

• George L. Paul of Lewis & Roca, LLP, Phoenix
• Thomas Y. Allman of Mayer, Brown, Rowe & Maw, Chicago
• Frank Verderame of Plattner Verderame, PC, Phoenix; appearing on behalf of his firm and the Arizona Trial Lawyers Association
• Carol Cure, Division Counsel, Shea Homes Limited Partnership, Scottsdale
• Patrick J. Paul of Snell & Wilmer, L.L.P., Phoenix
• Kenneth L. Mann of Beus Gilbert PLLC, Scottsdale
• Thomas P. Burke, II of Burke Panzarella Rich, Phoenix
• Michael J. O’Connor of Jennings, Strouss & Salmon, PLC, Phoenix
• Daniel J. McAuliffe of Snell & Wilmer, L.L.P., Phoenix and President-Elect of the State Bar of Arizona
• Patrick A. Long of Long, Williamson & Delis, Santa Ana, California and President of DRI
• Steven K. Hazen, Secretary of the Executive Committee of the State Bar of California Business Law Section, Los Angeles
• Melissa Richards Smith, Gillam Smith, L.L.P., Marshall, Texas
• Edward G. Hochuli of Jones, Skelton & Hochuli, Phoenix
• Douglas L. Christian of Harper Christian Dichter Graif, P.C., Phoenix

Comments received by the Committee to date, including the prepared statements of several of the witnesses who will be testifying, may be viewed here. A second hearing is scheduled to occur in New York City on January 29, 2007.

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A complete set of the pending e-discovery amendments to the Federal Rules of Civil Procedure, with Advisory Committee notes, is available here. Barring any action by Congress, these go into effect on December 1, 2006.

As reported earlier, at its June 2006 meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and approved publishing for public comment proposed Evidence Rule 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver). The rule has now been published for public comment, and is available here on the U.S. Court’s Federal Rulemaking website. Read More

At its June 22-23, 2006 meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and approved publishing for public comment proposed new Evidence Rule 502. The proposed new rule “opts for the middle ground” in determining whether inadvertent disclosure is a waiver, in accord with the majority view. Under the new rule, inadvertent disclosure of privileged or protected information during discovery would constitute a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. The proposed new rule will be published for public comment in August 2006.

A copy of proposed new Evidence Rule 502 and the accompanying Committee Note is available here as an attachment to the May 15, 2006 Report of the Advisory Committee on Evidence Rules.