This summer, the standing committee on the federal rules of the Supreme Court’s Judicial Conference published for public comment proposed Federal Rule of Evidence 502 and accompanying Committee Notes, initially drafted and recommended by the Advisory Committee on Evidence Rules. Proposed Rule 502 addresses the waiver of privilege arising from the production of documents: the effect of inadvertent production, the scope of the waiver arising from both inadvertent and intentional production, and — the subject of this article — the effect on future claims of privilege of producing documents to the government in the course of an investigation.

In its current form, proposed FRE 502, “Attorney-Client Privilege and Work Product: Waiver by Disclosure,” states that a person or entity waives privilege by voluntarily disclosing protected information unless that disclosure is made “to a federal, state, or local governmental agency during an investigation by that agency, and is limited to persons involved in the investigation.”

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