• Judicial Conference Proposes New Federal Rule of Evidence 502 Regarding Waiver of Privilege to Limit Costs of Discovery
  • December 3, 2007
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Brief Summary
    The Judicial Conference of the United States has submitted proposed new Federal Rule of Evidence 502 (“Proposed Rule 502”) to Congress with the recommendation that it be enacted in order better to address issues relating primarily to the inadvertent or partial production of documents.

    Complete Summary
    Under current federal common law, the inadvertent or partial disclosure of attorney-client or work product privileged communications can result in a complex and expensive litigation over whether privilege has been waived and the scope of any waiver.

    Generally speaking, Proposed Rule 502 seeks to bring greater national uniformity to the handling of such issues and also to reduce the present level of this form of satellite litigation. More specifically, Proposed Rule 502 contains the following provisions:

    • Proposed Rule 502(a) provides that, if a waiver is found due to disclosure in a federal proceeding or disclosure to a federal office or agency, the waiver will also apply to undisclosed communications or information in a federal or state proceeding if, but only if, the waiver is intentional, the disclosed and undisclosed communications concern the same subject matter, and fairness requires that the disclosed and undisclosed documents be considered together.
    • Proposed Rule 502(b) provides that an inadvertent disclosure of privileged or protected communications or information, when made at the federal level, does not operate as a waiver in a federal or state proceeding if the holder took reasonable steps to prevent such a disclosure and employed reasonably prompt measures to retrieve the mistakenly disclosed communications or information.
    • Proposed Rule 502(c) provides that, if there is a disclosure of privileged or protected communications at the state level, and such disclosure is not the subject of a state-court order concerning the waiver, then the disclosure does not operate as a waiver in a federal proceeding if the disclosure would not be a waiver if it had initially been made in a federal proceeding or would not have constituted a waiver under the law of the state in which the disclosure occurred.
    • Proposed Rule 502(d) provides that federal court orders protecting privileged or protected communications are enforceable against any and all persons in any other federal or state proceeding.
    • Proposed Rule 502(e) provides that parties in a federal proceeding can enter into a confidentiality agreement providing for mutual protection against waiver and that this agreement is binding only as to the parties of the agreement unless it is incorporated into a court order.

    Significance of Proposed Rule
    In other words, Proposed Rule 502 does not define when attorney-client and work product privilege may or may not apply in the first instance but does seek to control both when a waiver based on disclosure may exist and the scope of any waiver. No less importantly, Proposed Rule 502 seeks to regulate conduct not only in federal courts or proceedings but also in state courts or proceedings.