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Waiver of Attorney-Client Privilege and Work-Product Protection: Proposed New Federal Rule of Evidence Is under Consideration

By Beth L. Kaufman and David Black

At its Sept. 18, 2007 meeting, the Judicial Conference of the United States approved a proposed new Federal Rule of Evidence regarding waiver of attorney-client privilege and work-product protection. Because Rule 502 is a rule dealing with privilege and because the Rule would govern state courts regarding certain issues, the Rule must be enacted directly by Congress. Accordingly, at press time, the Judicial Conference will now submit the Rule to Congress, which will vote 'yay or nay' by no later than December 2007. If Congress approves the new Rule 502, the Judicial Conference will transmit the Rule to the U.S. Supreme Court by Dec. 18, 2007, keeping it on the path to be enacted on Dec. 1, 2008.

Among other things, Rule 502 would govern such issues as whether a waiver shall constitute a subject matter waiver, whether inadvertent disclosure shall operate as a waiver, and the enforceability of confidentiality orders. See Report of the Advisory Committee on Evidence Rules dated May 15, 2007 (the 'Report').

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