Harmonizing the Law of Evidence Regarding Inadvertent Waiver of the Attorney-Client Privilege (CPLR 4550)

SUMMARY 

In a letter to the New York State Office of Court Administration’s Advisory Committee on Civil Practice, the Committee on State Courts of Superior Jurisdiction generally supported the enactment of the Advisory Committee’s proposed new CPLR § 4550 concerning waiver of the attorney-client privilege and work product protection in both civil and criminal litigation. The proposed Rule states that a disclosure does not waive privilege if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; (3) the holder of the privilege or protection took reasonable steps to rectify the error; and (4) the party in possession of the disclosure will not be unduly prejudiced. However, the Committee believes that sub-part (4) of the proposed Rule requires modification to more clearly describe the prejudice showing necessary to prevent restoration of immunity, as delineated by federal and state courts. In addition, the Committee believes the Rule should be codified in CPLR Article 31 rather than Article 45.