Congress Sends New Federal Rule of Evidence 502 to President

Congress has sent to President Bush new Federal Rule of Evidence 502, S. 2450 [Thomas] which applies to the inadvertent disclosure in discovery of information protected by the attorney-client privilege and work-product doctrine. From Senate Report 110-264:

The bill provides a new Federal Rule of Evidence 502 to limit 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.

The bill provides a new rule to ensure that parties will take advantage of its protections by remaining enforceable in subsequent proceedings. If a federal court enters an order finding that an inadvertent disclosure of privileged information does not constitute a waiver, that order will be enforceable against persons in federal or state proceedings. This protects the rule's ability to limit discovery costs by ensuring that parties in any given case will know they can rely on the new waiver rules in subsequent proceedings.

Importantly, the bill respects federal-state comity. The bill will ensure that if there is a disclosure of privileged information at the federal level then courts must honor Rule 502 in any subsequent state proceedings. If there is a disclosure in a state proceeding, then admissibility in any subsequent federal proceeding will be determined by the law that is most protective against waiver. However, it does not apply to any disclosure made in a state proceeding that is later introduced in a subsequent state proceeding.

Not known for understanding the finer points of court rules and procedure (and due process for that matter), someone may have to dumb down the the legislative intent of S. 2450 before President Bush signs it into law. Even Congress gives final approval to key law on inadvertent disclosure in discovery may be to technical for him. [JH]