Enactment of New Federal Evidence Rule 502

On September 23, 2008, President Bush signed S. 2450 which The Judicial Conference had officially recommended for adoption in a  a letter to Congress, dated September 26, 2007 and which was then later passed by the Senate and the House.   The new Rule 502 will help limit the skyrocketing costs and delays that result from the need to conduct the exhaustive privilege reviews currently required to ensure against waiver of the attorney client privilege and attorney work  product protection.   The signing of S. 2450 represented a major accomplishment for LCJ and the legal reform community.

History of Enactment of New Rule 502

LCJ led the effort with the Chamber and other counsel and lobbyists in a coordinated fashion to develop and support our legislative strategy in this Congress. Action  included:

·        LCJ, on behalf of itself and DRI, FDCC, and IADC, advocated  support for the adoption of FRE 502 to members of the House and Senate Judiciary Committees.

·        LCJ counsel worked with counsel for the US Chamber and ABA to overcome objections from majority staff of the House Judiciary Committee and to develop support from many HJC members.

·         LCJ helped spur action on and approval of an improved version of FRE 502 by working with the Federal Judicial Conference  Evidence Rules Committee and preparing and submitting comments to the  Advisory Committee On Civil Rules as well as formal comments to the Judicial Conference’s Committee on Rules of Practice and Procedure. DRI, FDCC, IADC, U.S. Chamber Institute for Legal Reform, and Association of Corporate Counsel joined LCJ in these comments, which followed extensive testimony by LCJ members at hearings in New York and Phoenix in 2006-2007.

·        LCJ’s FRE 502 Task Force received very broad input from defense and corporate counsel throughout the three year drafting process that was instrumental in forging a consensus within the business and defense lawyer community. That input was conveyed to the rule makers in written comments and testimony at the hearings on the Rule by organizations and by individual corporate and defense trial counsel.   We were thrilled that A majority of all comments submitted and testimony presented were generated by LCJ and its members.

·         As a result, the version of FRE 502 unanimously approved by the Judicial Conference Standing Committee on Rules – and then by the full Judicial Conference – reflected improvements advocated by LCJ and was forwarded to Congress for approval.