Senate Judiciary Committee to amend bill S. 2450.

Judiciary Committee Report To Accompany S. 2450, A Bill To Amend The Federal Rules Of Evidence To Address The Waiver Of Attorney-Client Privilege And The Work Product Doctrine

Click here to read the bill.

B. PURPOSE OF THE BILL

The bill addresses these problems by providing a predictable and
consistent standard to govern the waiver of privileged information.
It improves the efficiency of the discovery process while preserving
accountability. Furthermore, it does not alter federal or state law
on whether information is protected by the attorney-client privilege
or work product doctrine in the first instance, but merely modifies
the consequences of inadvertent disclosure once a privilege is found
to exist.

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.

Importantly, the bill respects federal-state comity. The bill will
ensure that if there is a disclosure of privileged information at the
federal level then courts must honor Rule 502 in any subsequent
state proceedings. If there is a disclosure in a state proceeding,
then admissibility in any subsequent federal proceeding will be determined
by the law that is most protective against waiver. However,
it does not apply to any disclosure made in a state proceeding
that is later introduced in a subsequent state proceeding.

Litigants recognize the need to adopt a new waiver doctrine to
adapt to the effects of changing technology in the business environment.

The bill has attracted widespread support from major legal
organizations representing stakeholders on all sides of modern litigation.

Among those groups voicing support for the measure are
the American Bar Association, American College of Trial Lawyers,
U.S. Chamber of Commerce, former Chairs of the Section of Litigation
of the American Bar Association, Lawyers for Civil Justice,
and several private law firms.