Wednesday, May 30, 2007

Proposed Fed. R. Evid. 502 - An Update

We have previously posted on proposed Federal Rule of Evidence 502, which would codify at least portions of the law relating to waiver of the attorney-client privilege and work product protection.

The "big ticket" item in the proposed rule, which was not the focus of our post, was the "selective waiver" rule. This provision would have permitted producing privileged or protected documents or communications to regulatory agencies without thereby waiving otherwise applicable claims of privilege or protection in litigation.

Our post noted that the proposed rule did not address productions that go forward simultaneously in federal and state court proceedings. Unless the rule governed both, "protection" from waiver in the federal court proceeding would be of little value when the identical production in a state court proceeding resulted in a waiver. We also noted that the proposed rule did not fully explain how it applied in diversity actions. We attached to our post a comment that had been submitted to the Advisory Committee noting a number of troubling ambiguities. We closed with the observation that, "[w]ith luck, the Advisory Committee will address and clarify these issues before recommending that proposed Fed. R. Evid. 502 be adopted."

Luck happens.

On April 12 and 13, 2007, the Advisory Committee considered the public comments on the proposed rule, including the one linked to our previous post. In its May 15, 2007, report, the Advisory Committee released a revised version of proposed Fed. R. Evid. 502, which the Advisory Committee has now approved and forwarded to Congress for direct enactment. The "selective waiver" rule, which had been bracketed in the prior draft, is no more. Instead, the "selective waiver" rule now is a separate rule that the Advisory Committee forwarded to Congress without taking a position on its merits. The troubling issue of parallel productions in state court proceedings being governed by different and potentially contradictory rules remains because, in the Advisory Committee's view, its charge covers only events occurring in federal proceedings.

But we are happy to report that the Advisory Committee made some progress. The Committee clarified not only how the rule would apply in diversity actions -- the rule, not state law, would govern -- but addressed all of the potential ambiguities addressed in the comment we attached to our post. For those wanting to know more, the Advisory Committee's May 15, 2007 report can be accessed at www.uscourts.gov/Reports/EV05-2007.pdf.

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