The First Federal Counsel Privilege Bill Awaits the President's Signature

Congress has passed Senate Bill S. 2450, the first federal rule of evidence specifically addressing privilege waiver.  This legislation avoids directly addressing federal prosecutorial pressure for waiver - a still pending congressional issue.  Instead, it takes a modest approach, adopting uncontroversial rules governing the occurrence of waiver and its effects. The bill has been approved by the U.S. Judicial Conference.

As sent to the President, new Federal Rule of Evidence 502 has seven segments:

(a)  A disclosure made in a federal proceeding or to a federal agency effects a waiver of the privileges only if it was intentional, only for communications on the same subject, and only if fairness requires a conclusion of waiver.

(b)  Waiver will not be found where the disclosure was inadvertent, if the party took reasonable steps to prevent disclosure and to rectify the error.
           
(c)  Disclosure of counsel-privileged information in a state proceeding does not effect a federal waiver if the state court has not found waiver, and there would be no waiver under this rule or state law.
           
(d)  A federal court order to avoid waiver in a case governs the effect of disclosure in that litigation in relation to other federal and state proceedings.
           
(e)  An agreement between parties concerning waiver will only bind the parties unless a court adopts the agreement.
           
(f)  This rule overrides other Federal Rules of Evidence on its subject matter, even where state law provides the rule of decision.
           
(g)  The counsel privileges of attorney-client privilege and work product protection are conventionally defined.