Archive: July 16, 2007

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Standing Committee Approves Proposed New Evidence Rule 502
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Attachment of Protected Email to Service Copies of Motion Requesting its Return Constitutes Deliberate Disclosure to Adversaries, Waiving Any Privilege

Standing Committee Approves Proposed New Evidence Rule 502

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.

Attachment of Protected Email to Service Copies of Motion Requesting its Return Constitutes Deliberate Disclosure to Adversaries, Waiving Any Privilege

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2007 WL 1837133 (S.D.N.Y. June 27, 2007)

In this securities case, the parties had entered into a protective order which provided, among other things, that the inadvertent production of purportedly privileged documents would not operate as a waiver of any applicable privilege.  In August 2006, plaintiff produced an April 25, 2003 email and attached memorandum sent from an executive of plaintiff Kingsway to Kingsway’s counsel as part of a production of electronic documents.  In November 2006, defendant John Dore attached a copy of the April 25, 2003 email to a motion for reconsideration of a decision denying summary judgment in a related action pending in Illinois state court.  Four days later, plaintiff submitted a letter to the District Court for the Southern District of New York requesting the return of all copies of the April 25, 2003 email on the ground that it was protected by the attorney-client privilege and had been produced inadvertently.  Plaintiff filed the December 4, 2006 letter to the court under seal.  However, plaintiff attached a copy of the April 25, 2003 email to the service copies of the December 4, 2006 letter, thereby disclosing the contents of the email and the attachment to the defendants once again.

The court thereafter directed all defendants, including Dore, to return all copies of the disputed email, to destroy any documents disclosing its contents, to use best efforts to retrieve any such documents filed with any court, and to make no use of the email pending further order of the court. Read More

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