NYSBA Recommends New York Courts Adopt Equivalent of Federal Rule of Evidence 502

By Brandon Vogel

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The New York State Bar Association recommends that the New York Civil and Criminal Courts adopt the equivalent of the Federal Rule of Evidence Rule 502.

If enacted, this would establish a uniform set of standards and minimize or eliminate costly and time-consuming disputes about the waiver of attorney-client and work product protection.

This was the recommendation of the Committee on Technology and the Legal Profession in a recent report, approved by the Executive Committee.

Congress enacted the Federal Rule in 2008 with the intent to establish a uniform procedure throughout all United States courts to address the then-growing problem of inadvertent waiver of attorney-client privilege or work product protection.

The rule  provides that an inadvertent disclosure made in a federal proceeding or to a federal office or agency does not operate as a waiver in a federal or state proceeding if the person who produced the information satisfies three conditions:
(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.

Several states have adopted the rule including Illinois, New Jersey and Washington. A similar rule, Rule 202.70, exists in the Rules of the Commercial Division of the New York State Supreme Court.

The committee emphasized that adopting a similar rule would benefit both plaintiffs and defendants, as well as individuals and entities.

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