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.
