Attorney Client Privilege — Waiver — Rulemaking

The comment period for Proposed Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Waiver By Disclosure) ends on February 15, 2007. It is a very important rule that has four major components:

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

(2) It resolves a split in the Circuits as to whether inadvertent disclosure automatically effects a waiver (no).

(3) It tentatively proposes adopting the principle of selective waiver, under which disclosure to a federal office conducting an investigation does not effect a waiver as to third parties.

(4) It resolves a longstanding quandary by providing that a federal court order governing waiver through disclosure (inadvertent or otherwise) in the course of a litigation is binding on subsequent courts and third parties.

Comments submitted to the Advisory Committee to date can be reviewed at http://www.uscourts.gov/rules/2006_Evidence_Rules_Comments_Chart.htm.

With the change in Congress this week, the fate of this Rule -- which must be Congressionally enacted, under the Rules Enabling Act -- is uncertain. But there is reason to believe that the current Congress will also be interested in this issue, as was the Congress just past. (Thus, the Regulatory Relief Act of 2006 (signed into law on October 13, 2006) enacted the doctrine of selective waiver of attorney-client privilege in the banking field, providing that disclosure of attorney-client privileged materials to banking authorities — U.S. or foreign — or to credit union regulators no longer effects a waiver as to third parties. See 12 U.S.C. §§ 1828, 1785.) It is well worth taking the time to analyze and comment on Rule 502 because it very well might affect future waiver law. (GPJ)

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