Advisory Committee on Evidence Rules Takes Action to Moderate Privilege Waiver Provisions in Proposed Rule 502

Following extensive testimony and public comments earlier this year, the Advisory Committee on Evidence Rules has reported its recommendations to the Standing Committee on Rules of Practice and Procedure. The Advisory Committee’s recommendations can be found in its memorandum dated May 15, 2007. The recommendations were presented as an action item to the Standing Committee’s meetings on June 11-12, 2007. As the next procedural step, the Standing Committee would recommend rule changes to the Judicial Conference. Any rule proposed would eventually have to be directly enacted by Congress, inasmuch as the rules affect substantive privileges.

The Advisory Committee considered 70 written comments and held two public hearings where more than 20 witnesses testified. This post addresses a few but not all the changes proposed in the new rule.

Proposed Rule 502 would extend substantive decisions on privilege waiver in federal courts and make those decisions applicable in state court proceedings.

The Committee relaxed the requirements necessary to obtain protection against waiver for inadvertent disclosure. The latest draft of proposed Rule 502(b) only requires parties to take “reasonable steps” to prevent disclosure and promptly take reasonable steps to rectify the error. The Advisory Committee’s comments to the proposed rule make clear that the Committee relied on the testimony of corporate experts. Massive volumes of electronically stored information accumulated each year make it difficult and very expensive for a corporation to make meaningful, pre-discovery reviews for privilege. The Committee agreed, and the notes suggest, that having an effective records management compliance program, using linguistic tools or applying new search methodologies would be examples of taking “reasonable steps” to prevent disclosure.

Much of the debate leading up to the Advisory Committee’s report to the Standing Committee centered on the debate over new “selective waiver” provisions in subsection (c) and the so-called culture of waiver. The Advisory Committee decided to drop the selective waiver provision from the proposed new rule. The debate over selective waiver continues, however, in the courts, press, and in the form of proposed, new federal legislation. See earlier posts for more information on the selective waiver debate.

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