Advisory Committee on Federal Evidence Rules to Consider New Rule Codifying Waiver of Privilege by Disclosure
According to the Electronic Discovery Law Blog, the Advisory Committee on Federal Evidence Rules is considering a new rule that would substantially change privilege law. Take a look at this part of proposed Federal Rule of Evidence 502 to be discussed:
(b) Exceptions in general. – A voluntary disclosure does not operate as a waiver if:...
(2) the disclosure is inadvertent and is made during discovery in federal or state litigation or administrative proceedings – and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B); or
(3) the disclosure is made to a federal, state, or local governmental agency during an investigation by that agency, and is limited to persons involved in the investigation.
This would be a huge change. The pending Federal Rules of Civil Procedure amendments largely take care of (b)(2), because inadvertant production does not waive privilege under the new Federal Rules of Civil Procedure. Part (b)(3), though, would go much further - dangerously so - by shielding documents from discovery even if they have been voluntarily provided to an investigative agency. According to the Electronic Discovery Law Blog, the Rules Committee is poised to talk about this at its upcoming meeting on April 24.