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.