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October 2008

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This article is in the news archives --- for current news go to the Third Branch News.


President Signs Bill Creating New Federal Rule of Evidence

For years, attorneys had to spend countless hours reviewing millions of pages of documents in order to prevent an “attorney-client privileged” document from being accidentally released, driving up litigation costs for time spent on this exhaustive privilege review. The passage of S. 2450 by Congress changes that. The President signed the bill into law on September 19, 2008.

Pub. L. No. 110-322 creates a new Federal Rule of Evidence, Rule 502, regarding disclosure of privileged or protected material, that limits waivers of the attorney-client privilege and work-product protection to facilitate discovery and reduce its costs. According to Judge Lee H. Rosenthal (S.D. Tex.), chair of the Judicial Conference Committee on Rules of Practice and Procedure, this is the first rule of evidence relating to privilege that Congress has enacted in the 30 years since the Rules Enabling Act was passed. For over a year, Rosenthal has sought passage of this legislation, working closely with Professor Daniel Capra, Evidence Rules Committee reporter and primary drafter of Rule 502.

Rosenthal also noted the contributions of the AO’s Office of Legislative Affairs and Rules Support Office with whose help, “we were able to carry out the request of the Judicial Conference and achieve this important result.”

Chair of the Senate Judiciary Committee, Senator Patrick Leahy (D-VT), introduced S. 2450 in the Senate with co-sponsor and ranking Judiciary Committee member Senator Arlen Specter (R-PA). In the House, Judiciary Committee Chair John Conyers Jr. (D-MI) with Representative Howard L. Berman (D-CA) and the Committee’s ranking member, Lamar Smith (R-TX), played key roles in passing the legislation.

The bill, according to Leahy, had the support of the legal community. “It responds to the widespread complaint,” he said, “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.”

Representative Sheila Jackson-Lee (D-TX), who introduced a similar bill in the House, focused on the impact of electronically stored documents and noted that “when vast amounts of documents are transmitted and stored electronically and can be searched and collected in the same manner, it is all too easy for a document containing privileged information to be overlooked, despite careful efforts to prevent it.

Jackson-Lee said that both plaintiff and defense lawyers had indicated that S. 2450 will in fact “enhance their ability to represent their clients and to ensure that they may have the broadest based discovery possible.”

After advising Congress about the problem, the Judicial Conference and its Rules Committees were asked by the House Judiciary Committee to consider amending the rules to limit privilege waiver. Rule 502 was submitted to Congress in 2007 after careful deliberation by the Conference Advisory Committee on Evidence Rules and study of the issue by the Committee on Rules of Practice and Procedure.

“The Rules Committees studied the problem and concluded that the need for exhaustive preproduction privilege reviews could be significantly reduced if the risks of waiver were clarified and limited,” said Rosenthal. “New Evidence Rule 502 provides a consistent and predictable standard for determining the consequences of inadvertently disclosing privileged material, less onerous than under current law in some jurisdictions. While courts can, under present law, enter orders providing that disclosing privileged documents in discovery won’t waive the privilege, such orders are only enforceable as to the parties. Most importantly, such orders would be enforceable under Rule 502 as to third parties in any subsequent federal or state proceedings. The Rule’s added protections will help reduce the need for exhaustive, costly, and time-consuming preproduction review.”

Unlike other rule changes, Congress had to affirmatively enact Rule 502 by legislation because the rule affects privilege. Congress passed Rule 502 in the exact form proposed by the Judicial Conference.