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© 2008 by J. Craig Williams. All rights reserved

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Quote of the Day - Blessed is the man who, having nothing to say, abstains from giving us worthy evidence of the fact. - George Eliot
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Lawyer2Lawyer Internet Radio Goes By The New Rules: Federal Rule of Evidence 502

Every lawyer knows the costs of discovery can escalate. Last month on September 19, 2008, President Bush signed Senate Bill 2450 into law, which establishes Federal Rule of Evidence 502 and is effective immediately. This law creates a new rule of evidence limiting certain attorney-client privilege and work product waivers.

Please join me and my fellow blogger and co-host Bob Ambrogi as we welcome Attorney Robert D. Owen, a partner in Fulbright & Jaworski L.L.P., to take a look at the new Federal Rule of Evidence 502 and see how this new rule will affect litigation and litigation costs as well as clients.

It's not that easy to find, so in case you're looking for the text of the new rule, here it is:

Federal Rule of Eviden 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. 

            (a) DISCLOSURE MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY; SCOPE OF A WAIVER. - When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product  protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:

                        (1) the waiver is intentional;

                        (2) the disclosed and undisclosed communications or information concern the same subject matter; and

                        (3) they ought in fairness to be considered together.

            (b) INADVERTENT DISCLOSURE. - When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

                        (1) the disclosure is inadvertent;

                        (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

                        (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

            (c) DISCLOSURE MADE IN A STATE PROCEEDING.- When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:

                        (1) would not be a waiver under this rule if it had been made in a Federal proceeding; or

                        (2) is not a waiver under the law of the State where the disclosure occurred.

            (d) CONTROLLING EFFECT OF A COURT ORDER. - A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court-in which event the disclosure is also not a waiver in any other Federal or State proceeding.

            (e) CONTROLLING EFFECT OF A PARTY AGREEMENT. - An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

            (f) CONTROLLING EFFECT OF THIS RULE. - Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.

            (g) DEFINITIONS. - In this rule:

                        (1) ‘attorney-client privilege' means the protection that applicable law provides for confidential attorney-client communications; and

                        (2) ‘work-product protection' means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

For more on clawback and quick peek agreements, give a listen to the show.  You can also download our show to your iPod


Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, October 16, 2008 at 10:24 Comments Closed (0) |
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