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):
The proposed new rule facilitates discovery and reduces privilege-review costs by limiting the circumstances under which the privilege or protection is forfeited, which may happen if the privileged or protected information or material is produced in discovery. The burden and cost of steps to preserve the privileged status of attorney-client information and trial preparation materials can be enormous. Under present practices, lawyers and firms must thoroughly review everything in a client’s possession before responding to discovery requests. Otherwise they risk waiving the privileged status not only of the individual item disclosed but of all other items dealing with the same subject matter. This burden is particularly onerous when the discovery consists of massive amounts of electronically stored information.
The proposed new rule is intended to reduce the risk of forfeiting the privilege or protection so that parties need not scrutinize information produced in discovery as much as they now do, in order to reduce the burden, cost, and time such scrutiny requires. The proposed rule does not affect the substantive law of privileges, which continues to be governed by common law in federal courts.
A copy of the September 27, 2007 letters and proposed new Evidence Rule 502 that were submitted to Congress by the Judicial Conference are available here.