The recent amendments to the Federal Rules of Civil Procedure added several provisions to address electronic discovery issues. One provision — Rule 26(b)(5)(B) — allows a party that produces privileged or protected information to notify the opposing party of the claim and, after that notification, the receiving party must “promptly return, sequester, or destroy the specified information … and may not use or disclose the information until the claim is resolved.” Fed. R. Civ. P. 26(b)(5)(B) (as amended Dec. 1, 2006). On its face, Rule 26(b)(5)(B) appears to preserve claims of privilege or protection for inadvertently-produced materials. The accompanying Advisory Committee Notes explain, however, that Rule 26(b)(5)(B) “does not address whether the privilege or protection … was waived by the production” and, instead, merely “provides a procedure for presenting and addressing these issues.”
The evidentiary counterpart to Rule 26(b)(5)(B) is proposed Federal Rule of Evidence 502. That rule would provide a substantive basis for asserting that some inadvertent productions do not waive otherwise applicable claims of attorney-client privilege and work product protection. Prop. Fed. R. Evid. 502(b). The proposed rule also (1) prohibits subject matter waivers based upon nothing more than disclosure of a privileged or protected communication; (2) includes a provisional paragraph permitting selective waivers for disclosures of privileged or protected communications to federal agencies; and (3) provides that, if the parties agree that producing privileged or protected communications will not result in a waiver and have that agreement incorporated in a federal court’s order, the resulting order is binding in “all state or federal proceedings.” Prop. Fed. R. Evid. 502(a), (c)-(e).
The subject matter waiver and inadvertent production paragraphs of the proposed rule, however, create nearly as many questions as they answer. One comment submitted about the proposed rule notes that production issues often are litigated simultaneously in federal and state courts and, in that context, the application of the subject matter waiver and inadvertent production paragraphs of proposed Fed. R. Evid. 502 is unclear. The proposed rule also does not fully explain how it applies in diversity actions, where state privilege law generally governs. Here’s a link to the comment addressing those issues in more detail.
The comment period for proposed Fed. R. Evid. 502 closed last week. With luck, the Advisory Committee will address and clarify these issues before recommending that proposed Fed. R. Evid. 502 be adopted.