House joins Senate in passing S. 2450, which would create a new Federal Rule of Evidence (FRE 502) addressing recent issues involving the attorney-client privilege, including inadvertent disclosure, confidentiality agreements and court orders
On September 8, 2008, the U.S. House of Representatives passed S. 2450, which establishes a new FRE 502 concerning the attorney-client privilege. See 154 CONG. REC. H7817-H7820 (Sept. 8, 2008). The Senate had passed S. 2450 earlier in the year, on February 27, 2008. See 154 CONG. REC. S1317-S1319 (Feb. 27, 2008). Because the rule involved an evidentiary privilege, congressional action is required before the rule may be adopted. See 28 U.S.C. § 2074(b) (“Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.”). According to the House debate, the legislation will now be sent to the President.
In sum, the new FRE 502 addresses some recurring issues under current law governing the waiver of the attorney-client privilege and work product. The rule clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege takes reasonable steps to prevent disclosure. The rule allows parties to enter into a confidentiality agreement concerning privileged materials that is binding only on the parties, unless adopted in a court order. A court may order that disclosure of privileged information in a case is not waived for other federal and state proceedings.
For more information on FRE 502, see Sen. Rep. No. 264, 110th Cong., 2d Sess. (2008) ; Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence (154 CONG. REC. S1317-S1319 (Feb. 27, 2008)); Letter of the U.S. Judicial Conference to Congress.
As we recently noted, separate legislation (H.R. 3013) has been passed in the House concerning the attorney client privilege, with a virtually identical measure pending in the Senate (S. 3217). These measures address a separate issue and would generally bar federal attorneys in criminal and civil enforcement actions from requesting or using communications protected by the attorney client privilege or materials covered by the work product doctrine.
Other recent blog postings on legislation or action regarding the attorney-client privilege include:
- S. 3217: Attorney-Client Privilege Protection Act of 2008
- New Support For Attorney-Client Privilege Legislation
- Is Attorney-Client Privilege Legislative Reform Imminent?
- Revised DOJ Corporate Prosecution Guidelines Issued
- DOJ Reevaluating McNulty Attorney-Client Privilege Memo
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