A. Adopting Federal Rule Of Evidence 502 - The Legislative Process

Both the U.S. Judicial Conference, its Rules Committees and Congress have taken actions designed to add to the Federal Rules of Evidence a Rule 502. This new rule concerns the preservation of the attorney-client privilege and work product protections available to certain organizations. These actions include:

  • Sept. 19, 2008 - President signs S. 2450, enacting FRE 502 effective as of Sept. 19, 2008
  • Sept. 8, 2008 - House passes S. 2450: 154 Cong. Rec. H7817-H7820 (Sept. 8, 2008) and includes Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence
  • Senate Passes S. 2450 – February 27, 2008: The U.S. Senate passed S. 2450, which would establish new FRE 502. The Senate measure has been referred to the U.S. House of Representatives.
  • Senate Judiciary Committee Report: The Senate Judiciary Committee issues its report. Sen. Rep. No. 264, 110th Cong., 2d Sess. (2008). The Report notes that the Senate measure is the same as the proposal of the U.S. Judicial Conference. See Sen. Rep. No. 264, 110th Cong., 2d Sess. 4 (2008).
  • Senate Judiciary Committee – January 31, 2008:The Senate Judiciary Committee approved without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. According to the Administrative Office of the U.S. Courts, the measure "addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007."
  • U.S. Senate – December 11, 2007: Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) and ranking committee member Arlen Specter (R-Penn.) introduced S. 2450 to add a new FRE 502. Leahy remarked that the proposed rule would help minimize the burden of guarding against inadvertent release of privileged attorney-client and attorney work product materials during discovery. The bill incorporates text recommended by the United States Judicial Conference and would help litigants avoid waiving the privilege on inadvertent disclosures if parties took reasonable efforts to vet the documents and asked for the return of any privileged information in a timely manner.
  • U.S. House of Representatives – November 13, 2007: The House passed the Attorney-Client Privilege Protection Act of 2007, H.R. 3013. The bill was designed to reverse the effects of the Holder/Thompson/McNulty Department of Justice memos on the waiver of attorney-client privileges by subjects being investigated by government agencies. The bill amends the Federal Rules to incorporate a new rule on the preservation of the attorney-client privilege and work product.
  • House Judiciary Committee Report: The House Judiciary Committee issues its report on H.R. 3013 . H. Rep. No. 445, 110th Cong.,1st Cong. (Nov. 13, 2007). The House measure has been referred to the Senate for its consideration.
  • U.S. Judicial Conference – September 18, 2007: During its Fall meeting, the Conference approved recommendations from the Standing Committee on Rules of Practice and Procedure that the Federal Rules of Evidence be amended by adding a new evidence rule 502. The Conference approved the draft of FRE 502 and agreed that it should be submitted to Congress.
  • Standing Rules Committee Action - June 2007 Meeting: According to the Administrative Office of the U.S. Courts, "at its June 11-12, 2007, meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committees on Bankruptcy, Criminal, and Evidence Rules and approved the following proposed amendments and new rules: * * * Evidence Rule 502. The Committee also approved a letter to Congress accompanying proposed new Evidence Rule 502 and a report to Congress on creating a harm-to-child exception to marital privileges. The Committee will now transmit the proposed new rules and amendments to the Judicial Conference with a recommendation that they be approved and transmitted to the Supreme Court.""
  • Evidence Rules Committee Action - April 2007 Meeting: As reported by the Administrative Office of the U.S. Courts, "at its April 12-13, 2007, meeting, the Advisory Committee on Evidence Rules considered public comments on proposed new Evidence Rule 502, which was published for comment in August 2006. The advisory committee approved the proposed new rule, with modifications. The advisory committee will transmit the proposed new rule to the Committee on Rules of Practice and Procedure with a recommendation that it be approved and transmitted to the Judicial Conference for its consideration. The advisory committee also approved sending a report to Congress, suggesting that it is neither necessary nor desirable to amend the Federal Rules of Evidence to make the confidential marital communications privilege and the adverse spousal privilege inapplicable in any Federal proceeding in which a spouse is charged with a crime against . . . (1) a child of either spouse; or (2) a child under the custody or control of either spouse, as required by the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. No. 109-248). Finally, the advisory committee also approved proceeding with the restyling of the Federal Rules of Evidence."
Federal Rules of Evidence
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