Timeline - Federal Rule Of Evidence 502

Federal Rule Of Evidence 502 - Timeline

The process for considering the new rule of evidence (Federal Rule of Evidence 502) is indicated below along with links to reports and other relevant documentary material, where available:

April 29-30, 2004 Advisory Committee Minutes - Rules Advisory Committee receives report from Professor Broun on the Project on Privileges. Professor Broun indicates he would continue work on "future developments" including a section on the attorney-client privilege; report received on Civil Rules Committee proposal for a rule governing procedure for making a claim that a disclosure was inadvertent.
May 15, 2004 Advisory Committee on Evidence Rules notified that the Civil Rules Committee is considering a rule regarding waiver/forfeiture of privilege by inadvertent disclosure during the course of discovery.
April 28, 2005Advisory Committee Minutes reflect that the Rules Advisory Committee considered presentation by Professor Broun, consultant to the Committee's privilege project. The presentation focused on his proposal for a statute that would treat the question of inadvertent disclosure of privileged material. The Committee agreed to review the draft and consider action on the subject of waiver of the attorney-client privilege.
May 16, 2005 Advisory Committee on Evidence Rules - Subcommittee on Privileges reports on its long-term project to "survey" federal common law of privileges, including its consideration of "whether a proposed statute can be drafted to permit parties under certain circumstances to produce documents in discovery without risking subject matter waiver".
Jan. 23, 2006 Letter of House Judiciary Committee Chairman James Sensenbrenner, Jr. to Ralph Mecham, Director, Administrative Office of the U.S. Courts, “urg[ing] the Judicial Conference to proceed with a rule-making that would:

  • protect against the forfeiture of privilege where a disclosure in discovery is the result of an innocent mistake;
  • permit parties, and courts, to protect against the consequences of waiver by permitting disclosures of privileged information between the parties to a litigation; and
  • allow persons and entities to cooperate with government agencies by turning over privileged information without waiving all privileges as to other parties in subsequent litigation.”
March 7, 2006House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security Oversight Hearing on White Collar Enforcement: Attorney-Client Privilege and Corporate Waivers
April 24-25, 2006 Mini-Conference On Privilege Waiver - Advisory Committee on Evidence Rules convened a mini-conference on a proposed new evidentiary rule concerning waiver of the attorney-client privilege and work-product doctrine. Following the mini-conference, the Advisory Committee approved for publication proposed new Evidence Rule 502
June 22-23, 2006 Standing Committee Action - Standing Committee on Rules of the U.S. Judicial Conference approved recommendation by the Advisory Committee on Evidence Rules to publish for public comment proposed new rule of evidence 502.
August 2006 Text of proposed new Federal Rule Of Evidence 502, with advisory committee note, approved by the Standing Committee on Rules for publication.
August 2006 Proposed new Federal Rule Of Evidence published for public comment; anticipated deadline for receipt of comments: February 2007.
Sept. 12, 2006"The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations," Hearing before the Senate Judiciary Committee, 109th Cong., 2d Sess. (Sept. 12, 2006)
November 16, 2006Advisory Committee on Evidence Rules reviews issues concerning proposed new FRE 502 concerning waiver of attorney-client privilege and work product protection
January 4, 2007Senator Arlen Specter, of Pennsylvania, introduces the Attorney-Client Privilege Protection Act of 2007 (S. 186, 110th Cong., 1st Sess.)
January 12, 2007Rules Advisory Committee meeting and hearing in Phoenix, AZ
January 12, 2007Rules Advisory Committee hearing in Phoenix, AZ; Hearing Transcript
January 29, 2007Rules Advisory Committee meeting and hearing in New York, NY
February 2007Final public comments due on proposed new FRE 502; pending comments available at Rules Committee Web site
April 2007Advisory Committee On Evidence Rules Agenda For Committee Meeting, Agenda Materials, Rancho Santa Fe, California April 12-13, 2007 (including analyses, rule language alternatives, summary of comments received, and other background materials on the proposed rule)
May 15, 2007Report of the Advisory Committee on Evidence Rules to the Standing Committee on Rules of Practice and Procedure; recommending proposed FRE 502 be approved by the Standing Committee and forwarded to the Judicial Conference to be proposed to Congress
June 11-12, 2007Standing Committee on Rules of Practice and Procedure approved letter to Congress recommending proposed FRE 502 and forwards proposal to the Judicial Conference
September 18, 2007U.S. Judicial Conference considered the Standing Committee's draft letter to Congress concerning proposed FRE 502. The Conference approved the letter.
September 18, 2007Senate Judiciary Committee: "Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum"

The Senate hearings included testimony from:

  • Deputy Attorney General Paul J. McNulty
  • Former Attorney General Edwin Meese
  • Thomas J. Donohue, President and CEO, U.S. Chamber of Commerce
  • Karen J. Mathis, Esq., President, American Bar Association
  • Andrew Weissmann, Esq., Partner, Jenner & Block LLP
  • Director of the Department of Justice’s Enron Task Force; and
  • Mark B. Sheppard, Esq., Partner, Sprague & Sprague
September 26, 2007Letter of the U.S. Judicial Conference to Senator Patrick Leahy and Senator Arlin Specter Submitting Draft FRE 502
December 11, 2007Senate Judiciary Committee Chair Leahy introduces S. 2450, based on the proposal approved by the Judicial Conference, concerning waiver of the attorney-client privilege and work product protections.
February 25, 2008Senate Judiciary Committee issues report on S. 2450: Sen. Rep. No. 264, 110th Cong., 2d Sess. (2008).
February 27, 2008Senate passes S. 2450: 154 Cong. Rec. S1317-S1319 (Feb. 27, 2008)
Sept. 8, 2008House 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
Sept. 19, 2008President signs S. 2450, enacting FRE 502 effective as of Sept. 19, 2008
Federal Rules of Evidence