NACDL Hails Legislative Protection for Inadvertently Produced Privileged Material
Washington, DC (September 12, 2008) -- NACDL commends Congress and the federal judiciary for passage of a modified rule of evidence that will continue to protect the attorney-client privilege in cases where privileged material was inadvertently produced.
“The attorney-client privilege is one of the oldest of evidentiary privileges, and it is critical to maintaining fairness in our adversarial system of justice. Citizens need it in order to obtain every day legal advice, and as litigants, to prepare their cases,” NACDL President John Wesley Hall said. “A client will only confide in his counsel if he trusts that his communications will be kept confidential. By providing that an inadvertent production of privileged material does not result in waiver – as long as reasonable steps were taken to prevent the production and to correct the error – clients’ resources can be redirected to their legal defense, rather than costly and unproductive exercises in reviewing and re-reviewing document production.”
The legislation, which will amend Federal Rule of Evidence 502, also clarifies the law of “subject matter waiver,” in which the provision of one privileged document can result in the waiver of the privilege that covers all related material and documents. “Courts have been maddeningly inconsistent in evaluating what constitutes subject matter waiver, and this language will help,” Hall said.
NACDL has lead efforts to restore the attorney-client privilege to its rightful place in the federal judicial system as a consistent and reliable protection for criminal – and civil—litigants. On August 28, thanks in part to NACDL’s efforts, the Department of Justice altered its long-standing policy that required organizations under investigation to waive the attorney-client privilege that protected statements that were made by their employees to the organizations’ counsel. NACDL continues to fight for passage of S. 3217, “The Attorney-Client Privilege Protection Act of 2008,” in order to clarify and improve upon these changes, make them applicable to other federal agencies, and give them the force of law.