New Federal Evidence Rule 502

Senate Bill 2450 – signed by President Bush last Friday-- establishes a new federal rule of evidence that states “the inadvertent disclosure of privileged material would not result in a waiver of attorney client and work product privilege as long as the party responsible for the disclosure took reasonable steps to prevent that release of material.”

The new rule, BNA’s U.S. Law Week (subscription) recently reported, is an attempt to “resolve long-standing disputes and conflicting decisions in federal court about the consequences of inadvertent disclosures,” and has several subsections:

• Rule 502(a) establishes scope of waiver from inadvertent disclosure, stating any waiver is limited to actual material disclosed and not all material on the same subject; if inadvertent disclosure is made in federal court, protection against privilege waiver applies in state court. If disclosure is done intentionally to gain tactical advantage, waiver would be extended to all material.


• Rule 502(b) states inadvertent disclosure of protected communications or information does not result in privilege waiver if disclosing party took reasonable steps to prevent the disclosure & correct the error after it occurred.


• Rule 502(c) states that an inadvertent disclosure first made in a state court proceeding does not waive privilege in subsequent federal proceedings.


• Rule 502(d) establishes “controlling effect” of a court order issued during litigation, stating that a privilege is not waived by disclosure.


• Rule 502(e) states that an agreement between parties that protects against privilege waivers in the event of inadvertent disclosures is binding only on those parties, and doesn’t apply to nonparties unless incorporated in a court order.


• Rule 502(f) and (g) state that new rule also applies to court-ordered arbitration and is limited to attorney-client privilege & work product protection.

U.S. Law Week also reported that Sen. Arlen Specter, who sponsored Senate Bill 2450, is also sponsoring a second bill (S 3217 ), which would “bar the Justice Department from forcing corporations to waive attorney-client privilege in return for leniency in criminal prosecutions.