New Federal Rules Amendments - Evidence Rule 502

At its June 2007 meeting, the Committee on Rules of Practice and Procedure approved, among other things, a proposed amendment to Federal Rule of Evidence 502 and the recommendations of the Advisory Committee on the Evidence Rules. The proposed amendments will now be sent to the Judicial Conference for approval and, if approved, to the Supreme Court for adoption.

The amendments considered by the Committee seek to provide parties with more predictable, uniform standards for determining the consequences of disclosing information otherwise protected by the attorney-client privilege or work product doctrine. The proposed amendments would include the following:

• Voluntary disclosure would result in a waiver of the information actually disclosed but would not automatically constitute a subject matter waiver. The Advisory Committee Notes would reserve a subject matter waiver for “unusual situations in which fairness requires a further disclosure of related, protected information.”
• Privilege would be waived by inadvertent disclosure if a party failed to take reasonable precautions to prevent disclosure and failed to make reasonable and prompt efforts to remedy the error.
• Disclosure of protected information to an investigating government agency would not constitute a general waiver, thereby eviscerating the principle of selective waiver. Moreover, the rule would provide that parties need not obtain a confidentiality agreement from the government agency to ensure protection from selective waiver.
• A court order addressing waiver of privileged or protected information in federal court would be enforceable against non-parties in any federal or state proceeding. The Advisory Committee also contemplated enforcement of “clawback” and “quick peek” arrangements as a way to control discovery costs.
• Disclosure agreements made by parties are binding on those parties but do not apply to other parties unless the agreement is incorporated into a court order.

The amendments as approved have not yet been published but are expected to be posted shortly at http://www.uscourts.gov/rules/.