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On April 24, 2006, the Advisory Committee on the Federal Rules of Evidence held a public hearing on Proposed Fed. R. Evid. 502, which would address waiver of attorney-client privilege and work-product protection. The Rules Enabling Act requires affirmative Congressional approval of any rule “creating, abolishing, or modifying an evidentiary privilege.” 28 U.S.C. 2074(b). Therefore, Proposed Rule 502 will become effective only if enacted by Congress, and, in drafting it, the advisory committee acted at the request of the chairman of the House Judiciary Committee. The proposed rule has four primary aspects: It articulates a test for determining the extent of subject-matter waiver of privileged or work-product material that is voluntarily disclosed. It resolves a split in the U.S. circuit courts of appeals as to whether inadvertent disclosure effects a waiver (generally providing that it does not). It tentatively proposes adopting the principle of selective waiver, under which disclosure to a federal office conducting an investigation does not effect a waiver as to third parties. It resolves a long-standing quandary by providing that a federal court order governing waiver through disclosure (inadvertent or otherwise) in the course of a litigation is binding on subsequent courts and third parties. Extent of waiver a straightforward proposition This is the first of two columns that will analyze Proposed Fed. R. Evid. 502. The remainder of the proposal will be covered in the next Federal Practice column. Extent of waiver. Subdivision (a) of Proposed Rule 502 addresses the scope of waiver through voluntary disclosure: “(a) Scope of waiver.-In federal proceedings, the waiver by disclosure of an attorney-client privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information.” This provision is straightforward as applied to attorney-client privilege but is problematic as applied to work-product protection. The “ought in fairness” language is borrowed from Fed. R. Evid. 106, which states the rule of completeness: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” This phrase has not proved problematic in Rule 106, and there is no reason to believe it will prove problematic as applied to matters covered by the attorney-client privilege. This is not to minimize the differences in the implications of the phrase as used in rules 106 and 502(a). Under Rule 106, the court has before it a specific document or recording, and the contours of the fairness determination are cabined by four corners of that item. Under Proposed Rule 502(a), the scope of the waiver extends to all communications, written or oral, on the subject. Subject-matter waiver, however, is existing law. The “ought in fairness” language provides, if anything, a potential limitation on the extent of the waiver-confining it to something less than the entire universe of the subject matter. This effectively captures what most judges have historically done in exercising their discretion. Extrajudicial waivers limited. The “ought in fairness” language also has the virtue of codifying a line of decisions holding that the waiver effected by an extrajudicial disclosure of privileged information is limited to the disclosure itself, and extends no further, provided that this does not work unfairness on the adversary. See, e.g., In re Grand Jury Proceedings, 350 F.3d 299 (2d Cir. 2003) (counsel for target of grand jury investigation sent a letter to the prosecutor asserting that the target acted in good faith based on counsel’s prior conversations with regulators; the prosecutor’s subpoena seeking counsel’s notes of conversations with regulators was quashed: “The crucial issue is not merely some connection to a judicial process but rather the type of unfairness to the adversary that results in litigation circumstances when a party uses an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion. No such unfairness was present here.”); XYZ Corp. v. U.S., 348 F.3d 16 (1st Cir. 2003) (“the extrajudicial disclosure of attorney-client communications, not thereafter used by the client to gain adversarial advantage in judicial proceedings, cannot work an implied waiver of all confidential communications on the same subject matter”). This line of decisions is also pertinent to the discussion of the selective waiver in proposed subdivision (c). Work-product issues. The conflation of attorney-client privilege and work-product protection in subdivision (a) is unfortunate and potentially misleading. Attorney-client privilege is designed to preserve confidentiality because of the societal benefits that flow from free and open communications between attorneys and clients. Work-product protection is not designed to preserve confidentiality-other than from an adversary. Disclosures that do not substantially increase the adversary’s opportunity to obtain the work product do not effect a waiver. 8 Wright, Miller & Marcus, Federal Practice & Procedure � 2024 (Supp. 2005). For example, if you are defending a company accused of fraud in the sale of a business and, in preparing your defense, you consult with the company’s investment banker who brokered the sale, the consultation is protected as work product. So, too, are materials you prepare based on that consultation. Therefore, the structure of the sentence comprising subdivision (a) -”the waiver by disclosure of . . . work product protection extends to an undisclosed communication or information”-can be quite misleading because its use of the word “extends” assumes that there is a waiver in the first place. In this example, there is not. The advisory committee note cites a Washington district court case, In re UMWA Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D.D.C. 1994), for the proposition that “waiver of work product [is] limited to materials actually disclosed,” but this is unpersuasive for two reasons. First, it is at best a very weak use of the word “waiver”-it means only that a person aligned in interest saw the materials-and this usage is, if not idiosyncratic, certainly not the universal approach. Many cases, including decisions of the D.C. Circuit, hold that a disclosure of work product to someone aligned in interest (like the investment banker in the example) does not effect a waiver at all. See, e.g., In re Sealed Case, 676 F.2d 793, 817 (D.C. Cir. 1982); In re Steinhardt Partners L.P., 9 F.3d 230, 236 (2d Cir. 1993). Second, the note’s reliance on the UMWA decision highlights a problem with the proposed definition of “work product protection” in Proposed Rule 502(f)-namely, that it is limited to “ materials prepared in anticipation of litigation or for trial.” This language, largely drawn from Fed. R. Civ. P. 26(b)(3), covers only a subset of the universe of work-product protection-work product embodied in “materials”-but work-product protection includes oral and other intangible work product as well. See, e.g., In re Cendant Corp. Sec. Litig., 343 F.3d 658, 662 (3d Cir. 2003) (“It is clear from Hickman [v. Taylor, 329 U.S. 495, 512-13 (1947)] that work product protection extends to both tangible and intangible work product”); 8 Wright, Miller & Marcus, Federal Practice & Procedure at � 2024 (“Rule 26(b)(3) itself provides protection only for documents and tangible things and . . . does not bar discovery of facts a party may have learned from documents that are not themselves discoverable. Nonetheless, Hickman v. Taylor continues to furnish protection for work product within its definition that is not embodied in tangible form”). Thus, in the hypothetical consultation with the company’s investment banker, if you disclose your tentative theories of the case or the gist of statements you have taken or facts you have gathered, that conversation is itself protected as work product, but it is outside the definition of the rule. Yet, you have “disclosed” work product to the company’s banker, and it is implicit in proposed subdivision (a) that you have thereby effected a waiver that may “extend” further. You have not. ‘Ought in fairness’ provision troublesome The “ought in fairness” test as applied to work product. The implications of the “ought in fairness” test for waiver of work-product protection are also troublesome. Assume an auto accident with three witnesses. Two witnesses say your client had the green light; one says the light was red. You take statements from all three. If you use the two statements that favor you, must you “in fairness” disclose the third? That is not the law today, nor should it be. You may have taken the third solely for purposes of impeachment; you may highly distrust the accuracy of the third’s rendition; and your client did not retain you to prepare your adversary’s case. There is a strong argument that rules 26(a)(1)(b), 26(a)(3) (first paragraph) and 26(b)(3) (second paragraph) contemplate that such statements are not subject to disclosure unless and until used for impeachment. A congressionally-enacted Rule 502 may be deemed to supersede these provisions. These are issues that the advisory committee should clarify. Note that Proposed Rule 502(a) governs only waiver through voluntary disclosure. The advisory committee note stresses that it is not intended to displace or modify federal common law concerning waiver of privilege or work product in other circumstances-e.g., reliance on advice of counsel, “at issue” waiver, or refreshing recollection while testifying (Fed. R. Evid. 612). Gregory P. Joseph is a fellow of the American College of Trial Lawyers and a past chair of the Litigation Section of the American Bar Association.

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