Federal Rule of Evidence 502: Stirring the State Law of Privilege and Professional Responsibility with a Federal Stick

Abstract

Federal Rule of Evidence 502 was signed into law by President Bush on September 19, 2008. It is the last piece of the puzzle of e-discovery amendments.

Rule 502 quietly takes the first steps toward federalization of two areas of law that traditionally have been subject to state regulation: The law governing waiver of the attorney-client privilege and the law governing an attorney's duties of professional conduct. This Article focuses on Rule 502(d) - the heart of this new Federal Rule of Evidence. This subsection permits a federal court to issue an order that protects against waiver of the attorney-client privilege or the work product protection despite a party's voluntary disclosure to an adversary of such protected or privileged information during discovery. The express purpose of Rule 502(d) is to relieve the disclosing party of the burden and cost of paying its attorneys to conduct a document-by-document review for privileged or protected information.

This initial foray into the area of state privilege law and state law of professional responsibility has long been resisted because of abiding concern with comity, issues of federalism and respect for the autonomous operation of state courts and state litigation systems. This Article identifies and considers the significant (and unforeseen) practical consequences of breaching the protective zone that has previously existed surrounding the States' operation of their own court systems, state rules of procedure and state rules of professional responsibility. It also addresses serious questions regarding the constitutional authority of Congress to enact such a rule and numerous practical and constitutional problems that will arise when applying the rule.

Keywords: evidence, 502, ediscovery, privilege, professional responsibility, commerce clause

JEL Classification: K40, K41