Commercial Litigation and Arbitration

Final Committee Version of Federal Rule of Evidence 502 — Selective Waiver Omitted

Download associated file: Final Evidence Rule 502.pdf 

On June 11, the Standing Committee on Rules of Practice and Procedure unanimously approved Proposed Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver). The proposal, as approved, is attached. If it is approved by the Judicial Conference this fall, the proposal will be sent directly to Congress for enactment. It cannot be adopted through the customary rulemaking process because any "rule creating, abolishing, or modifying an evidentiary prvilege shall have no force or effect unless approved by Act of Congress," under 28 U.S.C. § 2074.

The controversial selective waiver provision -- which some months ago was broken out into a separate statute -- remains an orphan. The Standing Committee took no position on it. The Report to Congress that contains Rule 502 (again, assuming Judicial Conference approval this autumn) will indicate that, if Congress is interested in the issue of selective waiver, draft statutory language is available on request. The Report will not contain it, however.

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