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Congress set to rework Federal Rules of Evidence

On the House suspension calendar Monday, September 8, is S. 2450, a bill to amend the Federal Rules of Evidence with respect to the disclosure of a communication or information covered by the attorney-client privilege and work product protection.

Introduced by Sens. Leahy and Specter, the bill is intended to ease the rising costs and time expended on discovery as parties attempt to prevent inadvertent disclosure of privileged documents. The Senate Judiciary committee report explains both the rationale and approach in the bill:

The bill provides a new Federal Rule of Evidence 502 to limit the consequences of inadvertent disclosure, thereby relieving litigants of the burden that a single mistake during the discovery process can cost them the protection of a privilege. It provides that if there is a waiver of privilege, it applies only to the specific information disclosed and not the broader subject matter unless the holder has intentionally used the privileged information in a misleading fashion. An inadvertent disclosure of privileged information does not constitute a waiver as long as the holder took reasonable steps to prevent disclosure and acted promptly to retrieve the mistakenly disclosed information.

The bill provides a new rule to ensure that parties will take advantage of its protections by remaining enforceable in subsequent proceedings. If a federal court enters an order finding that an inadvertent disclosure of privileged information does not constitute a waiver, that order will be enforceable against persons in federal or state proceedings. This protects the rule's ability to limit discovery costs by ensuring that parties in any given case will know they can rely on the new waiver rules in subsequent proceedings.

The bill passed the Senate on a voice vote in February, has not been amended, and its presence on the suspension calendar means almost certain House passage -- then on to the President for his signature.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.