Privilege Waiver: Proposed Federal Rule of Evidence 502

Gregory P. Joseph

The Advisory Committee on the Federal Rules of Evidence is considering Proposed Fed.R.Evid. 502, which would address waiver of attorney-client privilege and work product protection. The Rules Enabling Act requires affirmative Congressional approval of any rule "creating, abolishing, or modifying an evidentiary privilege." 28 U.S.C. § 2074(b). Therefore, Proposed Rule 502 will become effective only if enacted by Congress, and, in drafting it, the Advisory Committee acted at the request of the Chair of the House Judiciary Committee.

The Proposed Rule has four primary aspects:

  • It articulates a test for determining the extent of subject matter waiver of privileged or work product material that is voluntarily disclosed.

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