Text Of S. 2450, H.R. 3013 And FRE 502 (Original Version)

Text Of S. 2450

The text of S. 2450 as passed by the U.S. Senate on February 27, 2008:

S. 2450 A Bill To amend the Federal Rules of Evidence to address the waiver of the attorney-client privilege and the work product doctrine



SECTION 1. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS ON WAIVER.

(a) In General- Article V of the Federal Rules of Evidence is amended by adding at the end the following:

"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.

  1. 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:
    1. the waiver is intentional;
    2. the disclosed and undisclosed communications or information concern the same subject matter; and
    3. they ought in fairness to be considered together.
  2. 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:
    1. the disclosure is inadvertent;
    2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
    3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
  3. 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:
    1. would not be a waiver under this rule if it had been made in a Federal proceeding; or
    2. is not a waiver under the law of the State where the disclosure occurred.
  4. 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.
  5. 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.

  6. 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.

  7. Definitions- In this rule:
    1. "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and
    2. "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."

(b) TECHNICAL AND CONFORMING CHANGES- The table of contents for the Federal Rules of Evidence is amended by inserting after the item relating to rule 501 the following:
"502. Attorney-client privilege and work-product doctrine; limitations on waiver.".

(c) Effective date- The amendments made by this Act shall apply in all proceedings commenced after the date of enactment of this Act and, insofar as is just and practicable, in all proceedings pending on such date of enactment.



Text Of H.R. 3013

The text of H.R. 3013 as passed by the House of Representatives, November 13, 2007:

Text Of H.R. 3013 Attorney-Client Privilege Protection Act of 2007

(Note: Text of H.R. 3013 is the same as S.186 (Specter) except that S.186 omits proposed new sections to the U.S. Code Sections 3014(e) and 3014(f) as proposed by H.R. 3013)

SECTION 1. SHORT TITLE.

This Act may be cited as the "Attorney-Client Privilege Protection Act of 2007".

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings- Congress finds the following:

  1. Justice is served when all parties to litigation are represented by experienced diligent counsel.
  2. Protecting attorney-client privileged communications from compelled disclosure fosters voluntary compliance with the law.
  3. To serve the purpose of the attorney-client privilege, attorneys and clients must have a degree of confidence that they will not be required to disclose privileged communications.
  4. The ability of an organization to have effective compliance programs and to conduct comprehensive internal investigations is enhanced when there is clarity and consistency regarding the attorney-client privilege.
  5. Prosecutors, investigators, enforcement officials, and other officers or employees of Government agencies have been able to, and can continue to, conduct their work while respecting attorney-client and work product protections and the rights of individuals, including seeking and discovering facts crucial to the investigation and prosecution of organizations.
  6. Despite the existence of these legitimate tools, the Department of Justice and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouraging organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions.
  7. An indictment can have devastating consequences on an organization, potentially eliminating the ability of the organization to survive post-indictment or to dispute the charges against it at trial.
  8. Waiver demands and other tactics of Government agencies are encroaching on the constitutional rights and other legal protections of employees.
  9. The attorney-client privilege, work product doctrine, and payment of counsel fees shall not be used as devices to conceal wrongdoing or to cloak advice on evading the law.

(b) Purpose- It is the purpose of this Act to place on each agency clear and practical limits designed to preserve the attorney-client privilege and work product protections available to an organization and preserve the constitutional rights and other legal protections available to employees of such an organization.

SEC. 3. DISCLOSURE OF ATTORNEY-CLIENT PRIVILEGE OR ADVANCEMENT OF COUNSEL FEES AS ELEMENTS OF COOPERATION.

(a) In General- Chapter 201 of title 18, United States Code, is amended by inserting after section 3013 the following:

Sec. 3014. Preservation of fundamental legal protections and rights in the context of investigations and enforcement matters regarding organizations

(a) Definitions- In this section:

  1. ATTORNEY-CLIENT PRIVILEGE- The term `attorney-client privilege' means the attorney-client privilege as governed by the principles of the common law, as they may be interpreted by the courts of the United States in the light of reason and experience, and the principles of article V of the Federal Rules of Evidence.
  2. ATTORNEY WORK PRODUCT- The term `attorney work product' means materials prepared by or at the direction of an attorney in anticipation of litigation, particularly any such materials that contain a mental impression, conclusion, opinion, or legal theory of that attorney.

(b) In General- In any Federal investigation or criminal or civil enforcement matter, an agent or attorney of the United States shall not—

  1. demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney-client privilege or any attorney work product;
  2. condition a civil or criminal charging decision relating to a organization, or person affiliated with that organization, on, or use as a factor in determining whether an organization, or person affiliated with that organization, is cooperating with the Government—
    1. any valid assertion of the attorney-client privilege or privilege for attorney work product;
    2. the provision of counsel to, or contribution to the legal defense fees or expenses of, an employee of that organization;
    3. the entry into a joint defense, information sharing, or common interest agreement with an employee of that organization if the organization determines it has a common interest in defending against the investigation or enforcement matter;
    4. the sharing of information relevant to the investigation or enforcement matter with an employee of that organization; or
    5. a failure to terminate the employment of or otherwise sanction any employee of that organization because of the decision by that employee to exercise the constitutional rights or other legal protections of that employee in response to a Government request; or
  3. demand or request that an organization, or person affiliated with that organization, not take any action described in paragraph (2).

(c) Inapplicability- Nothing in this Act shall prohibit an agent or attorney of the United States from requesting or seeking any communication or material that such agent or attorney reasonably believes is not entitled to protection under the attorney-client privilege or attorney work product doctrine.

(d) Voluntary Disclosures- Nothing in this Act is intended to prohibit an organization from making, or an agent or attorney of the United States from accepting, a voluntary and unsolicited offer to share the internal investigation materials of such organization.

(e) Not to Affect Examination or Inspection Access Otherwise Permitted- This Act does not affect any other federal statute that may authorize, in the course of an examination or inspection, an agent or attorney of the United States to require or compel the production of attorney-client privileged material or attorney work product.

(f) Charging Decisions Not to Include Decisions to Charge Under Independent Prohibitions- It is not conditioning a charging decision under subsection (b)(2) of this section to charge an organization or person affiliated with that organization for conduct described in subparagraph (B), (C), or (D) of that subsection under a federal law which makes that conduct in itself an offense.".



(b) Conforming Amendment- The table of sections for chapter 201 of title 18, United States Code, is amended by adding at the end the following:

"3014. Preservation of fundamental legal protections and rights in the context of investigations and enforcement matters regarding organizations."



Text Of Proposed
Federal Rule Of Evidence 502 (Original Version)

The text of proposed Rule 502 as approved by the Advisory Committee on Rules of Evidence as it appeared in July 2006, prior to publication:


Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

(a) Scope of waiver. — In federal proceedings, the waiver by disclosure of an attorney-client privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information.

(b) Inadvertent disclosure. — A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver in a state or federal proceeding if the disclosure is inadvertent and is made in connection with federal litigation or federal administrative proceedings — and 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, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B).

( c ) Selective waiver. — In a federal or state proceeding, a disclosure of a communication or information covered by the attorney-client privilege or work product protection — when made to a federal public office or agency in the exercise of its regulatory, investigative, or enforcement authority — does not operate as a waiver of the privilege or protection in favor of non-governmental persons or entities. The effect of disclosure to a state or local government agency, with respect to non-governmental persons or entities, is governed by applicable state law. Nothing in this rule limits or expands the authority of a government agency to disclose communications or information to other government agencies or as otherwise authorized or required by law.

(d) Controlling effect of court orders. — A federal court order that the attorney-client privilege or work product protection is not waived as a result of disclosure in connection with the litigation pending before the court governs all persons or entities in all state or federal proceedings, whether or not they were parties to the matter before the court, if the order incorporates the agreement of the parties before the court.

(e) Controlling effect of party agreements. — An agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement, but not on other parties unless the agreement is incorporated into a court order.

(f) Included privilege and protection. — As used in this rule: 1) "attorney-client privilege" means the protection provided for confidential attorney-client communications, under applicable law; and 2) "work product protection  means the protection for materials prepared in anticipation of litigation or for trial, under applicable law.



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