NEW YORK — Brooklyn attorney Barry Kamins, on behalf of the New York City Bar Association, sent Congress a letter last week, calling for an amendment to the Federal Rules of Evidence.

Kamins, the president of the NYC Bar Association, sent the letter to the U.S. Senate majority and minority leaders, expressing the bar association’s support for the proposed legislation (S. 2450), which would add Rule 502 to the Federal Rules of Evidence.

The bill was unanimously approved by the Senate Judiciary Committee two weeks ago. Rule 502 addresses the effect of disclosure of privileged materials in federal proceedings.

“[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,� wrote Kamins. “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.�

The letter detailed what the specific effects of the proposed Rule 502 subsections would be:

Proposed Rule 502(a) limits the risk of subject-matter waiver in federal proceedings and in state court; (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; (c) provides that a waiver in state court does not operate as a waiver in federal court if either it would not be a waiver under state law, or if it would not be a waiver under Rule 502 if made in a federal proceeding; (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.

— Ryan Thompson
Brooklyn Daily Eagle

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