[110th Congress Public Law 322]
[From the U.S. Government Printing Office]


[DOCID: f:publ322.110]

[[Page 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 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.

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