Commercial Litigation and Arbitration

Gaps in Federal Rule of Evidence 502: Larry Fox’s View

Download associated file: Fox on Gaps in New Rule 502.pdf 

Lawrence J. Fox, a former Chair of (1) the ABA Standing Committee on Ethics and Professional Responsibility and (2) the ABA Section of Litigation, has identified what he considers to be "four really important issues [that] are not addressed by new Rule 502" in an excellent, short article that is attached to this post. The four issues, in Larry's words:

• "First, the new rule does not tell us what happens with respect to the peripatetic documents themselves." He identifies a split of authority on this issue.

• "The second question unanswered by Rule 502 – whether receiving counsel has any obligation to notify the producing party of the inadvertent disclosure – also forces the worried lawyer to confront a split."

• "Third, Rule 502 tells us nothing about any duty on the part of the lucky lawyer to return the privileged documents."

• "Fourth, Rule 502 provides no protection for the lawyer from the lawyer’s client."

The article is attached -- © 2008 Lawrence J. Fox.

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