Special Investigations Practice - Judicial Conference Reiterates Proposed FRE Amendment to Protect Against Inadvertent & Subject Matter Waiver
Continuing judicial and congressional concern for counsel privileges, the Judicial Conference of the United States reiterated on November 30, 2007 its proposal of a new Federal Rule of Evidence 502 to protect against inadvertent and subject-matter waiver. The proposed rule:
- Applies, not only in a “federal proceeding,” but also in any disclosures to a “federal office or agency;”
- Negates waiver of attorney-client privileged and work product protected material where the disclosure was inadvertent and the disclosing party took reasonable steps to prevent and rectify the disclosure;
- Confines subject-matter waiver of undisclosed counsel privileged material to intentional disclosures where it would be unfair to deny broader disclosure;
- Projects protections of the rule to state proceedings;
- Confines agreements to maintain confidentiality to the parties, absent a court order.
This proposal is identical to the Judicial Conference proposal sent to Congress in early October, excepting only the addition of some comment text, including clarification of the effect on state and other federal proceeding of a federal court order prohibiting waiver. This proposal also complements new Federal Rule of Civil Procedure 26(b)(5)(B), effective December 1, 2007, which provides a procedure for determining the effect of a disclosure of material the producing party subsequently asserts to be privileged. Congress is also considering H.R. 3013, now pending in the Senate, which protects against coerced waiver in federal investigations.
For more information please contact:
Stuart Pierson
202.274.2897
stuart.pierson@troutmansanders.com