As described by the Advisory Committee on Evidence Rules, the recommended amendment to the Federal Rules of Evidence would create a new rule (Rule 502). This new rule is designed to resolve problems with the current federal common law governing the waiver of attorney-client privilege and work product.
The Advisory Committee was concerned with the significant amounts of time and effort expended during litigation to preserve the privilege, even when many of the documents are of no concern to the producing party.
Parties must be careful because if a privileged document is produced, there is a risk that a court will find a subject matter waiver that will apply not only to the instant case and document but to other cases and documents as well. Also, such expense is devoted to production in order to protect against inadvertent disclosure of privileged information, because the producing party risks a ruling that even a mistaken disclosure can result in a subject matter waiver. The Committee determined that the discovery process would be more efficient and less costly if documents could be produced without risking a subject matter waiver of the attorney-client privilege or work product protection.
To achieve these goals, the committee designed a proposal in which:
- A subject matter waiver should be found only when privilege or work product has already been disclosed, and a further disclosure "out in fairness" be required in order to protect against a misrepresentation that might arise from the previous disclosure.
- An inadvertent disclosure should not constitute a waiver if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error.
- A provision on selective waiver should be included in any proposed rule released for public comment, but should be placed in brackets to indicate that the Committee has not yet determined whether a provision on selective waiver should be sent to Congres
- Parties to litigation should be able to protect against the consequences of waiver by seeking a confidentiality order from the court; and in order to give the parties reliable protection, that confidentiality order must bind non-parties in any federal or state court.
- Parties should be able to contract around common-law waiver rules by entering into confidentiality agreements; but in the absence of a court order, these agreements cannot bind non-parties.