[United States Statutes at Large, Volume 122, 110th Congress, 2nd Session]
[From the U.S. Government Publishing Office, www.gpo.gov]

122 STAT. 3537

Public Law 110-322
110th Congress

An Act


 
To amend the Federal Rules of Evidence to address the waiver of the
attorney-client privilege and the work product doctrine. [NOTE: Sept.
19, 2008 -  [S. 2450]]

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS ON
WAIVER.

(a) In General.--Article V of the Federal Rules of Evidence is
amended by adding at the end the following:

``Rule 502. [NOTE: 28 USC app.]  Attorney-Client Privilege and Work
Product; Limitations on Waiver

``The following provisions apply, in the circumstances set out, to
disclosure of a communication or information covered by the attorney-
client privilege or work-product protection.
``(a) Disclosure Made in a Federal Proceeding or to a Federal Office
or Agency; Scope of a Waiver.--When the disclosure is made in a Federal
proceeding or to a Federal office or agency and waives the attorney-
client privilege or work-product protection, the waiver extends to an
undisclosed communication or information in a Federal or State
proceeding only if:
``(1) the waiver is intentional;
``(2) the disclosed and undisclosed communications or
information concern the same subject matter; and
``(3) they ought in fairness to be considered together.

``(b) Inadvertent Disclosure.--When made in a Federal proceeding or
to a Federal office or agency, the disclosure does not operate as a
waiver in a Federal or State proceeding if:
``(1) the disclosure is inadvertent;
``(2) the holder of the privilege or protection took
reasonable steps to prevent disclosure; and
``(3) the holder promptly took reasonable steps to rectify
the error, including (if applicable) following Federal Rule of
Civil Procedure 26(b)(5)(B).

``(c) Disclosure Made in a State Proceeding.--When the disclosure is
made in a State proceeding and is not the subject of a State-court order
concerning waiver, the disclosure does not operate as a waiver in a
Federal proceeding if the disclosure:
``(1) would not be a waiver under this rule if it had been
made in a Federal proceeding; or
``(2) is not a waiver under the law of the State where the
disclosure occurred.

[[Page 3538]]
122 STAT. 3538

``(d) Controlling Effect of a Court Order.--A Federal court may
order that the privilege or protection is not waived by disclosure
connected with the litigation pending before the court--in which event
the disclosure is also not a waiver in any other Federal or State
proceeding.
``(e) Controlling Effect of a Party Agreement.--An agreement on the
effect of disclosure in a Federal proceeding is binding only on the
parties to the agreement, unless it is incorporated into a court order.
``(f)  Controlling Effect of This Rule.--Notwithstanding Rules 101
and 1101, this rule applies to State proceedings and to Federal court-
annexed and Federal court-mandated arbitration proceedings, in the
circumstances set out in the rule. And notwithstanding Rule 501, this
rule applies even if State law provides the rule of decision.
``(g) Definitions.--In this rule:
``(1) `attorney-client privilege' means the protection that
applicable law provides for confidential attorney-client
communications; and
``(2) `work-product protection' means the protection that
applicable law provides for tangible material (or its intangible
equivalent) prepared in anticipation of litigation or for
trial.''.

(b) Technical and Conforming Changes.--The table of contents for the
Federal Rules of Evidence is amended by inserting after the item
relating to rule 501 the following:

``502. Attorney-client privilege and work-product doctrine; limitations
on waiver.''.

(c) [NOTE: 28 USC app.]  Effective Date.--The amendments made by
this Act shall apply in all proceedings commenced after the date of
enactment of this Act and, insofar as is just and practicable, in all
proceedings pending on such date of enactment.

Approved September 19, 2008.

LEGISLATIVE HISTORY--S. 2450:
---------------------------------------------------------------------------

SENATE REPORTS: No. 110-264 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 154 (2008):
Feb. 27, considered and passed Senate.
Sept. 8, considered and passed House.