Waiver making you nervous? Rule 502 purports to help.

A bill to add a New Federal Rule of Evidence was introduced in the Senate on December 11, 2007 and approved by the Senate Judiciary Committee on January 31, 2008.  Prior to its introduction on December 7, 2007, the ABA sent a letter to the Senate Judiciary Committee endorsing the proposed rule.

The new proposed rule addresses waiver of the attorney-client privilege and the work product doctrine.  The proposed rule provides protection against a finding of waiver in circumstances where there is an inadvertent disclosure/production of privileged material, as long as the disclosing party had taken reasonable steps to prevent the disclosure.

This proposed rule is intended to remedy the problem of conflicting rules and decisions on this topic by the various federal courts.  It is also aimed at the great risk of inadvertant production and soaring litigation document review costs in the age of e-discovery. The proposed rule, however, does not identify what constitutes "reasonable measures" to protect against disclosure, so there will still be plenty of room for disagreement.

thomas.loc.gov/cgi-bin/query/z --Text of proposed Rule 502.

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