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Advisory Committee Modifies Proposed Evidence Rule 502 In Light of Public Comment Received, and Recommends Approval by Standing Committee

Posted in FEDERAL RULES AMENDMENTS

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.

3.  The text was clarified to stress that Rule 502 applies in state court with respect to the consequences of disclosure previously made at the federal level – despite any indication to the contrary that might be found in the language of Rules 101 and 1101.

4.  Language was added to emphasize that a subject matter waiver cannot be found unless the waiver is intentional – so that an inadvertent disclosure can never constitute a subject matter waiver.

5.  The committee relaxed the requirements necessary to obtain protection against waiver from inadvertent disclosure. As amended, the inadvertent disclosure provision assures that parties are not required to take extraordinary efforts to prevent disclosure of privilege and work product; nor are parties required to conduct a post-production review to determine whether any protected information has been mistakenly disclosed.

6.  The protections against waiver by mistaken disclosure were extended to disclosures made to federal offices or agencies, on the ground that production in this context can involved the same costs of pre-production privilege review as in litigation.

7.  The selective waiver provision – on which the Evidence Rules Committee had never voted affirmatively – was dropped from the Proposed Rule 502. The Evidence Rules Committee approved a separate report to Congress on selective waiver, setting forth the arguments both in favor and against the doctrine, and explaining the Committee’s decision to take no position on the merits of selective waiver. The Evidence Rules Committee also prepared language for a statute on selective waiver to accompany that separate report to Congress; while the Committee took no position on the merits, it determined that the language could be useful to Congress should it decide to proceed with a separate selective waiver provision.

8.  The Committee deleted the language conditioning enforceability of federal court confidentiality orders on agreement of the parties. It concluded that a federal order finding that disclosure is not a waiver should be enforceable in any subsequent proceeding, regardless of party agreement.

9.  The definition of work product was expanded to include intangible information, as the work product protection under federal common law extends to all materials prepared in anticipation of litigation, including intangibles.

After considering and approving these changes at the April 2007 meeting, the Advisory Committee on Evidence Rules voted unanimously in favor of:  (1) Proposed Rule 502 as amended from the version issued for public comment; (2) a cover letter to Congress to accompany and explain Proposed Rule 502; and (3) a separate letter to Congress concerning selective waiver.  Each of these documents is set forth in an appendix to the Committee’s May 15, 2007 Report, available here.

The next meeting of the Standing Rules Committee is scheduled to occur in San Francisco on June 11 and 12, 2007, at which time further action on proposed Evidence Rule 502 may be expected.