Evidentiary rule protects against inadvertent waiver of the attorney-client privilege

On Sept. 8, the House of Representatives passed S. 2450, legislation to adopt proposed Federal Rule of Evidence 502. The bill, if signed into law, protects against inadvertent waiver of the attorney-client privilege and work product protection when producing documents in discovery.

The Senate passed an identical version of the bill in February. Having passed in both chambers, the bill is now before President Bush for signature.

ABA President H. Thomas Wells Jr. commended the House of Representatives for joining the Senate and federal courts in approving the legislation and emphasized the importance of the bill. “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,” said Wells. “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." Wells noted the risk of inadvertent disclosures was vastly expanded by electronic discovery.

The new rule will bring clarity, certainty and control over spiraling discovery costs, Wells said. “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,” he pointed out.

The ABA has supported rules addressing inadvertent disclosure since 2006. A letter from the ABA Governmental Affairs Office in March to House Judiciary leaders laid out the need for consistent rules involving inadvertent disclosure, echoing the 2006 policy sponsored by the Section of Litigation

To learn more about the association's efforts on behalf of protecting the attorney-client privilege, go to the ABA Governmental Affairs Office priorities Web site.

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