Commenting on Proposed New Rule 502

In January and February 2007, the Advisory Committee on Evidence Rules will hear public testimony and accept written comments and make recommendations to the Judicial Conference and the Supreme Court on a proposed new Rule 502 of the Federal Rules of Evidence. The changes will require approval from Congress. Proposed Rule 502 has controversal provisions, particularly 502(c), a selective disclosure exception opponents argue would encourage prosecutors to ask for waivers in more criminal investigations.

As noted in earlier posts, the ABA and other groups have fixated on this selective waiver provision, and oppose its adoption for concern that prosecutors and regulators would cite the rule to support arguments that companies should waive the privilege as a show of cooperation, without fear of the ripple effect of such a decision on third parties. The Advisory Committee bracketed the selective waiver language and said

while the Committee is seeking public comment, it has not yet taken a position on the merits of this provision. Public comment on this “selective waiver” provision will be especially important to the Committee’s determination. The Committee is especially interested in any statistical or anecdotal evidence tending to show that limiting the scope of waiver will 1) promote cooperation with government regulators and/or 2) decrease the cost of government investigations and prosecutions.

As the Committee has taken no position on the bracketed provision, it is obvious that there is nothing in the proposed rule that is intended either to promote or deter any attempt by government agencies to seek waiver of privilege or work product. The Committee takes no position on the ongoing debate arising from the Department of Justice’s revised principles governing the prosecution of a corporation and the effect of cooperation and voluntary disclosure (Memorandum from Larry D. Thompson, Deputy Attorney General, section VI (January 20, 2003).

In December 2006, Senator Arlen Specter introduced the Attorney-Client Privilege Protection Act.” The bill aims to temper prosecutor requests for waiver and use the response of the suspect corporation as a means to gauge the extent of cooperation. Other federal agencies have followed suit, though the critics have focused mainly on the practices of federal prosecutors. ACC issued a press release, as did the ABA.

Another important but largely overlooked section of proposed new Rule 502 is subparagraph (b) addressing the inadvertent disclosure exception. This provision could be critical for organizations facing e-discovery challenges, and there is a risk that blanket opposition to selective waiver will overshadow the importance of enacting an inadvertent waiver exception.

Expect more focus to this debate over the coming weeks. The Judicial Conference Advisory Committee on Evidence Rules is conducting public hearings on proposed Rule 502 on January 12 and 29, 2007, in Phoenix and New York City, respectively. The submission date for written comments is February 15, 2007.

Lexakos founder, Rick Wolf, submitted written testimony on January 9, 2007, and the Advisory Committee on Evidence Rules has invited Rick to testify on January 29, 2007 in New York at the Federal District Court, where hearings will take place.

For more resources on this important topic, see:

Decline of Attorney-Client Privilege in the Corporate Context (survey results)

Testimony from the Senate Judiciary Committee hearing

Transcripts and Testimony from the House Judiciary Committee hearing;


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