Ride the Lightning

RULE 502 IS HALFWAY HOME

February 28, 2008

On February 27th, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The bill will now move to the House of Representatives for a vote. The legislation concerns waiver of the attorney-client privilege and work product protection. The language of the bill is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for approval in September 2007.

To my knowledge, no serious opposition is anticipated in the House. This is an excellent step forward. As the Committee note says, “It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery. See, e.g., Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005) (electronic discovery may encompass “millions of documents” and to insist upon “record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation”).”

The text of the rule may be found at http://www.uscourts.gov/rules/Hill_Letter_re_EV_502.pdf#page=16

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