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Amending federal evidence rules for inadvertent disclosure

The U.S. House of Representatives did indeed pass S. 2450 yesterday on a voice vote, "A bill to amend the Federal Rules of Evidence to address the waiver of the attorney-client privilege and the work product doctrine. (Earlier post.)

In the brief floor discussion, Rep. Shiela Jackson-Lee (D-TX) and Rep. Steve King (R-IA) explained that the legislation was prompted by the Judicial Conference, responding to the rising costs of discovery as parties seek to prevent inadvertent disclosure of privileged information. King's quick summary:

[The] cost of discovery has spiked in recent years based on the proliferation of e-mail and other forms of electronic recordkeeping. Litigants must constantly sift through a mountain of documents to ensure that privileged material is not inadvertently released. While most documents produced during discovery have little value, attorneys must still conduct exhaustive reviews to prevent disclosures. The cost to litigants is staggering and the time consumed by courts to supervise these activities is excessive.

The system is broken and must be fixed. S. 2450 does just that by providing a predictable standard to govern waivers of privileged information. The legislation improves the efficiency and the discovery process, while it still promotes accountability. It alters neither Federal nor State law on whether the attorney-client privilege or the work product doctrine protects specific information. The bill only modifies the consequences of an inadvertent disclosure once a privilege exists.

Here's an interview on the legislation, with Judge Lee H. Rosenthal, U.S. District Court for the Southern District of Texas, and chair of the Judicial Conference Committee on Rules of Practice and Procedure.

The bill now goes to President Bush for his signature.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.