Advisory Committee on Evidence Rules Completes Meetings on Proposed Rule 502

On April 12 and 13, 2007, the Advisory Committee on Evidence Rules held meetings to consider proposed new Rule 502 of the Federal Rules of Evidence. The meetings and discussions were based largely on the extensive summary set forth in the Reporter’s Memo to the Advisory Committee on Evidence Rules dated March 15, 2007, titled “Proposed Changes to Rule as Released for Public Comment.”

It appears the controversial provision on selective waiver — 502(c) — will not survive and be part of the Advisory Committee’s final recommendations to the Judicial Conference. The Advisory Committee considered the debate on selective waiver a political one, and it is likely that that battle will continue in Congress.

The possible omission of selective waiver makes the proposed rule much cleaner and principally focused on inadvertent privilege waiver in the context of e-discovery. The Advisory Committee appears to have adopted several recommendations on proposed Rule 502(b) (inadvertent waiver). The new draft and notes to the rule will likely take into account record management systems and the use of search technology and software in determining whether an organization had taken “reasonable steps” to prevent the disclosure of privileged information. The term “reasonable steps” would replace language in earlier drafts of the rule, where the committee used the term “reasonable precautions.”

More analysis on Rule 502 will follow, but for now here is a copy of Reporter’s Memo to the Advisory Committee on Evidence Rules dated March 15, 2007.

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