LawyersUSA

President George W. Bush signed S. 2450 late last month.

The new Rule is identical to the version proposed by the Judicial Conference of the United States in September 2007.

The Senate passed the bill by unanimous consent in February and the House of Representatives followed suit on Sept. 8.

The new Rule applies in all cases initiated after the bill was signed, and "insofar as is just and practicable" applies to proceedings already pending on that date.

The Rule codifies the majority view: a party is protected from waiving a privilege if the information was inadvertently disclosed, unless the disclosing party was negligent in its production or failed to take reasonable steps in seeking its return.

Further, all other documents dealing with the same subject matter as the disclosed document are protected unless fairness requires a different result.

Rule 502 allows parties in a federal proceeding to enter into a confidentiality agreement providing for mutual protection against waiver in that specific proceeding. A court may also enter an order providing that the disclosure of privileged or protected information doesn't constitute a waiver, which can then be enforced against any other party in any state or federal proceeding.

Intent behind the Rule

In a letter to Congress, the Judicial Conference said the new Rule had a two-fold purpose: to resolve disputes in the courts about the effect of inadvertent disclosures and to respond to complaints that the cost of protecting against the waiver of attorney-client and/or work product privileges was becoming prohibitive.

"The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant to a confidentiality order, the court's order will be enforceable. Moreover, if a federal court's confidentiality order is not enforceable in a state court then the burdensome costs of privilege review and retention are unlikely to be reduced," the Conference wrote.

Click here to read the Judicial Conference's letter to Congress, and here for the "Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence."

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com