Federal Rule of Evidence 502 Introduced in Senate

Download associated file: S 2450.pdf 

Federal Rule of Evidence 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver) was introduced in the Senate on December 11, 2007 as The Leahy-Specter Bill. The text of the bill is attached. The floor statement of Senator Leahy was as follows:

Mr. LEAHY. Mr. President, today I introduce legislation to create Federal Rule of Evidence 502. I am pleased that Senator Specter has joined me in this effort. After much study, several hearings, and significant public comment, the Judicial Conference's Standing Committee on Rules of Practice and Procedure, and the Advisory Committee on Evidence Rules, arrived at a proposed new rule that is intended to provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of email and other electronic media. I commend all of the judges, professors and practitioners who were involved in the rule's drafting and subsequent improvement for their hard work and attention to this issue. The legislation we are introducing today contains the text that the Judicial Conference recommends. Billions of dollars are spent each year in litigation to protect against the inadvertent disclosure of privileged materials. With the routine use of email and other electronic media in today's business environment, discovery can encompass millions of documents in a given case, vastly expanding the risks of inadvertent disclosure. The rule proposed by the Standing Committee is aimed at adapting to the new realities that accompany today's modes of communication, and reducing the burdens associated with the conduct of diligent electronic discovery. Our proposed legislation would set clear guidelines regarding the consequences of inadvertent disclosure of privileged material, and provides that so long as reasonable steps are taken in the prevention of such a disclosure, or to assure the prompt retrieval of disclosed information, no waiver will result. Moreover, an inadvertent disclosure of privileged information would not result in a broader subject matter waiver beyond the specific materials disclosed. If a disclosure of privileged material is made voluntarily, only the privilege associated with the voluntarily disclosed material is waived, and not other undisclosed related materials. But if voluntary disclosure of privileged material is done selectively in an effort to mislead or gain unfair advantage, then where fairness dictates, this will result in a subject matter waiver. This legislation would also provide that confidentiality agreements entered into by parties to litigation, and approved by the court, will bind all non-parties in other State or Federal litigation. This provision will add meaningful protection to parties entering confidentiality agreements and, along with other components of the proposed rule, will aid in reducing the burdens of excessive pre-production document review. Unlike other Federal court rules, any proposed rule that modifies an evidentiary privilege must be approved by Congress pursuant to the Rules Enabling Act. The modification of a privilege is an undertaking not to be approached lightly, and the process that resulted in proposed Rule 502 was thorough and thoughtful. It has resulted in widespread approval of the proposed rule from the bench and bar at both the State and Federal level. I urge all Senators to join Senator Specter and me to pass this proposal and take a positive step toward modernizing and improving the Federal Rules of Evidence. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Senator Specter’s floor statement follows:

Mr. SPECTER. Mr. President, I seek recognition today to introduce legislation, together with Senator Leahy, to enact Federal Rule of Evidence 502. Federal Rule of Evidence 502, which was drafted and proposed to Congress by the Judicial Conference of the United States, is a rule to provide heightened protection against inadvertent loss of the attorney-client privilege during the discovery process. At a time when litigation costs are skyrocketing and discovery alone can last for years, this rule is urgently needed. And unlike other Federal rules of procedure, which go into effect unless Congress acts, rules governing evidentiary privilege must be enacted by Congress. Current law on attorney-client privilege and work product is responsible in large part for the rising costs of discovery—especially electronic discovery. Right now, it is far too easy to inadvertently lose—or “waive”—the privilege. A single inadvertently disclosed document can result in waiving the privilege not only as to what was produced, but as to all documents on the same subject matter. In some courts, a waiver may be found even if the producing party took reasonable steps to avoid disclosure. Such waivers will not just affect the case in which the accidental disclosure is made, but will also impact other cases filed subsequently in State or Federal courts. Thus, lawyers must spend significant amounts of time ensuring that documents containing privileged communications and work product are not inadvertently produced. In this day and age when there can be literally millions of electronic files to comb through looking for privileged material, the risk of one slipping through the cracks is very high. The fear of waiver leads to undue expense and to extravagant claims of privilege. The proposed rule will alleviate these burdens in two primary ways: First, it protects against undue forfeiture of attorney-client privilege and work product protections when privileged communications are inadvertently produced in discovery--where the party producing the documents took reasonable steps to prevent the disclosure and does not try to use the disclosed information in a misleading way. Second, it permits parties and courts to protect against the consequences of waiver by permitting limited disclosure of privileged information between the parties to litigation. This allows parties and courts to manage the effects of disclosure and provide predictability in current and future litigation. The proposed rule enjoys wide support from parties on both sides of the ``v.'' Both plaintiffs and defendants want this rule because it makes the litigation more efficient and less costly; it ensures that the wheels of justice will not become bogged down in the mud of discovery. The Judicial Conference, which is the body responsible for proposing new procedural rules, has undertaken an extensive process in crafting this rule over the last year and a half. The rule was approved by the Judicial Conference's Advisory Committee on Evidence Rules, the Standing Committee on Rules of Practice and Procedure, and the Judicial Conference itself, after a public comment period that included several hearings with supportive comments and testimony from bench and bar. There were more than 70 public comments, and more than 20 witnesses testified. The time is ripe to move forward and enact this proposed rule into law. Therefore, I have worked with Senator Leahy to bring this bill to the floor in a timely and bipartisan fashion. This rule is necessary to protect the attorney-client privilege, to bring clarity to the law, and to ensure fairness for all parties. And every day we wait wastes the time and resources of litigants and the courts. I urge my colleagues to join with Senator Leahy and me in supporting this bill.

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