Statement of H. Thomas Wells Jr., President, American Bar Association
Re: Congressional Approval of Federal Rule of Evidence 502

CHICAGO, Sept. 9, 2008 -- The American Bar Association commends the House of Representatives for joining the Senate and federal courts in approving important legislation that will bring much needed clarity, certainty and control over spiraling discovery costs in complex federal litigation and in dealings with federal agencies.

It is heartening to see Congress act unanimously on such an important piece of legislation.  Plaintiffs and defendants, consumers and businesses, and lawyers and judges worked together to help make litigation more efficient and less costly for everyone. Because the costs of doing business, including legal and regulatory compliance costs, ultimately fall on consumers, this legislation will provide significant economic benefits to all Americans.

Existing law on the effects of inadvertent disclosure of privileged materials during discovery has been inconsistent and uncertain, and it varies widely from one jurisdiction to the next.  This has forced lawyers assisting clients in complex litigation matters to devote enormous amounts of time and money to screen each document for possible privilege before producing it to the other side.  Electronic data retention has vastly expanded the potential for inadvertent production of protected information and compounded the risk to parties.

The new federal rule of evidence will substantially reduce the potential for harm to clients on both sides by allowing them to retrieve privileged materials produced inadvertently, as long as they had taken reasonable steps to avoid such disclosures and moved promptly to recover them once a mistake was discovered.  It also addresses the problem of “subject matter waiver” by providing that when a party produces one privileged document, any resulting waiver of the privilege would not extend to other related documents, as long as there was no intentional and misleading use of protected information.  In addition, the rule will make federal court orders protecting against waiver enforceable in both federal and state courts. Finally, it will make confidentiality agreements between parties that are incorporated into court orders enforceable against nonparties. 

By clarifying the law in these important ways, the rule will help preserve fundamental attorney-client privilege and work product protections of all parties, while substantially reducing unnecessary discovery costs that would be passed on to consumers.

We especially appreciate the leadership of House Judiciary Committee Chairman John Conyers, Jr. (D-MI), Ranking Member Lamar Smith (R-TX), and Rep. Sheila Jackson Lee (D-TX)—and that of Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Ranking Member Arlen Specter (R-PA)—in shepherding this legislation to passage.

MEDIA CONTACT:  Nancy Cowger Slonim, 312/988-6132, or slonimn@staff.abanet.org