News & Developments
Rule 502 Passed by Congress; Awaiting Signature by President Bush
On September 8, 2008 the House of Representatives passed by voice vote S. 2450, which provides a new Rule 502 of the Federal Rules of Evidence. The Senate had unanimously passed S. 2450 on February 27, 2008. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA had previously expressed its strong support for the addition of Rule 502 and had urged members of Congress to promptly pass S. 2450.
According to the Senate Judiciary Committee Report recommending passage of S. 2450, new Rule 502 provides "a predictable and consistent standard to govern the waiver of privileged information. It improves the efficiency of the discovery process while preserving accountability. Furthermore, it does not alter federal or state law on whether information is protected by the attorney-client privilege or work product doctrine in the first instance, but merely modifies the consequences of inadvertent disclosure once a privilege is found to exist." The Report further states that new Rule 502 limits "the consequences of inadvertent disclosure, thereby relieving litigants of the burden that a single mistake during the discovery process can cost them the protection of a privilege. It provides that if there is a waiver of privilege, it applies only to the specific information disclosed and not the broader subject matter unless the holder has intentionally used the privileged information in a misleading fashion. An inadvertent disclosure of privileged information does not constitute a waiver as long as the holder took reasonable steps to prevent disclosure and acted promptly to retrieve the mistakenly disclosed information.” Speaking on the floor of the Senate Senator Patrick Leahy (D-Vt.), the bill's co-sponsor, said, “[t]he new rule would provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of e-mail and other electronic media.”
The legislation is now being forwarded to President Bush for his review and signature. Once finally enacted into law, S. 2450 will apply to all cases filed after the date of its enactment and, insofar as just and practicable, to all cases pending on the date of its enactment.
Rule 502 Passes Senate; Awaiting Vote in House
On February 27, 2008 the Senate unanimously passed S. 2450 which includes new Rule 502 of the Federal Rules of Evidence. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA has previously expressed its support for the addition of Rule 502. Speaking on the floor of the Senate Senator Patrick Leahy (D-Vt.), the bills co-sponsor, said, “[t]he new rule would provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of e-mail and other electronic media.” The legislation has now been referred to the House Judiciary Committee for consideration leading up to a full vote of the House of Representatives.
