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Media Advisory
February 11, 2008

New York City Bar Supports Proposed Federal Rule of Evidence, # 502

In a February 6 th letter to the U.S. Senate majority and minority leaders, the New York City Bar Association expressed its support for S. 2450, legislation currently pending before the Senate. S. 2450 would amend the Federal Rules of E vidence by adding Rule 502, which addresses the effect of disclosure of pri vileged materials in federal proceedings. The letter, signed by Association President Barry Kamins, said that:

  • Proposed Rule 502(a) limits the risk of subject-matter waiver in federal proceedings and in state court.
  • Proposed Rule 502(b) protects an inadvertent disclosure in a federal court or federal administrative proceeding from operating as a waiver in another federal proceeding or state court proceeding, if the holder of the privilege took reasonable measures to rectify the error once it became known.
  • Proposed Rule 502(c) provides that a waiver in state court does not operate as a waiver in federal court if either (1) it would not be a waiver under state law, or (2) it would not be a waiver under Rule 502 if made in a federal proceeding.
  • Proposed Rules 502(d) and (e) provide, respectively, that a federal court may order that a disclosure of privileged matter in a proceeding pending before the court does not operate as a waiver in any other court (federal or state); and that an agreement of the parties to this effect is binding only on the parties before the court, unless incorporated in such an order.

“Many cases now involve massive amounts of e-discovery and in those cases it is almost a certainty that there will be mistakes and material will be inadvertently produced,” Kamins wrote.

“[W]e support proposed Rule 502 as an effective means to streamline the discovery process and reduce the burdens currently placed on litigants and courts arising from discovery-related disputes involving the inadvertent waiver of privilege, while at the same time maintaining fairness and balance in dealing with intentional disclosure of privileged material for tactical gain.”

he bill was approved unanimously by the Senate Judiciary Committee two weeks ago.

About the Association
The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.

 

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