Federal Rule of Evidence 502 in Congress

On Friday afternoon, March 14, 2008, I participated in a conference call with House Judiciary Committee staffers concerning proposed Federal Rule of Evidence 502 (waiver of privilege and work product). The good news is that they agreed that there is a problem that needs to be addressed -- a threshold which, they said, is rarely crossed. The bad news is that they feel that they are better equipped to address it than the Rules Committees which so carefully drafted the proposal. Putting aside the question whether the Rule should be a standalone statute (a senseless proposal, but one they seem fixated on), the staffers purported to detect unidentified "ambiguities" which their expertise might cure. This is probably the same Committee that gave birth to (or at least participated in fathering) the drafting monstrosity known as CAFA. The bright side: If they pass something, the Senate may save us. If they pass something and the Senate accedes, we can litigate it forever.

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