New evidence rule guides waiver of the attorney-client privilege and work-product doctrine
On September 19, 2008, the President signed into law S. 2450 creating FRE 502, a new rule of evidence entitled: “Attorney-client privilege and work-product doctrine; limitations on waiver.”
Text Of Federal Rule Of Evidence 502
insofar as is just and practicable, in all proceedings pending on September 19.)
Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver- When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:
- the waiver is intentional;
- the disclosed and undisclosed communications or information concern the same subject matter; and
- they ought in fairness to be considered together.
Inadvertent Disclosure- When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
- the disclosure is inadvertent;
- the holder of the privilege or protection took reasonable steps to prevent disclosure; and
- the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
Disclosure Made in a State Proceeding- When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:
- would not be a waiver under this rule if it had been made in a Federal proceeding; or
- is not a waiver under the law of the State where the disclosure occurred.
- Controlling Effect of a Court Order- A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other Federal or State proceeding.
Controlling Effect of a Party Agreement- An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
Controlling Effect of This Rule- Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.
Definitions- In this rule:
- "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and
- "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial."
According to the legislative history, the measure was intended to provide a consistent standard for application of the attorney-client privilege and work-product doctrine and address the problem of the increasing costs of litigation connected with the privilege. As the Senate Report to the measure noted: “The costs of discovery have increased dramatically in recent years as the proliferation of email and other forms of electronic record-keeping have multiplied the number of documents litigants must review to protect privileged material. Outdated law affecting inadvertent disclosure coupled with the stark increase in discovery materials has led to dramatic litigation cost increases.” Sen. Rep. No. 264, 110th Cong., 2d Sess. 1-2 (2008). According to the signed measure, the new rule becomes effective and applies “in all proceedings commenced after the date of enactment of this Act (September 19, 2008) and, insofar as is just and practicable, in all proceedings pending on such date of enactment.”
There are seven key provisions under the new rule:
- Subsection (a): Limits waiver of the privilege normally to the communication or materials disclosed, and not to the entire subject matter of the communication. The scope of any waiver is therefore confined to the information disclosed unless “fairness” requires further disclosure.
- Subsection (b): Clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.”
- Subsection (c): Addresses the circumstances when disclosure was first made in a state proceeding and is later considered in a federal proceeding. The provision applies the federal or state law that furnishes the greatest protection to the privilege and work product.
- Subsection (d): Recognizes that a confidentiality order may provide “that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.”
- Subsection (e): Allows parties to enter into an agreement to limit the effect of any disclosure. The agreement is only binding on the parties unless the agreement is included in a court order.
- Subsection (f): Notes that the rule “applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings” and “even if State law provides the rule of decision.”
- Subsection (g): Includes definitions for “attorney-client privilege” and “work-product protection.”
Worthy of note in the passage of the rule was that a selective waiver provision was omitted from the legislation after being dropped by a committee of the U.S. Judicial Conference. Also, in the legislative history of the legislation is a "Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence (154 CONG. REC. H7818-H7819 (Sept. 8, 2008)).
Basic documents on the legislative history of FRE 502 that are available on this website include:
- Senate Report (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. H7818-H7819 (Sept. 8, 2008))
- House Debate (154 Cong. Rec. H7817-H7820 (Sept. 8, 2008))
- Senate Debate (154 Cong. Rec. S1317-S1319 (Feb. 27, 2008))
- Letter of the U.S. Judicial Conference to Congress
- Congress Passes Attorney-Client Privilege Rule (FRE 502)
- Is Attorney-Client Privilege Legislative Reform Imminent?
Subscribe Now To The Federal Evidence Review
** Less Than $25 Per Month ** Limited Time Offer **