The details of the Federal rules of evidence can be, to use Professor Ann Murphy’s words, “so nerdy!” As the author of an article about the new Federal Rule of Evidence 502, Murphy was one of only two Western US representatives invited to participate in a symposium with the committee that directly advises Congress and the Supreme Court. A full transcript of the conference will be published in an upcoming issue of the Fordham Law Review.
A Federal Rule with Huge Impacts
Murphy published the article Federal Rule of Evidence 502 – Inadvertent Disclosure – the “Get-Out-Of-Jail-Free Provision” – Or Is It? in the 41 New Mexico Law Review 193 (2011).
The participants of the symposium included Federal judges, attorney practitioners and scholars who have ruled on, used and written about Federal Rule of Evidence 502. Rule 502, “Attorney-Client Privilege and Work Product; Limitations on Waiver,” was written by the Advisory Committee, passed by Congress and signed into law by President Bush in 2008. The rule was created in response to the enormous increase in electronically stored information and the inadvertent disclosure of material that is covered by both the attorney-client privilege and work product protection.
Addressing Changes in Technology
Federal rules of evidence and disclosure were originally written to handle communications between attorneys and clients on paper and in person. With more communication happening digitally, and with thousands and even millions of pieces of communication per case, inadvertent disclosure of electronic communications has become much more common. This rule allows for, essentially, a mulligan on privilege being waived.
Encouraging Use of an Obscure Rule
Though Rule 502 has been around since 2008, this symposium was convened because the rule is not being used, except for in very large cases, explains Murphy. “As an attorney I frequently cited to the Judiciary Conference Advisory Committee on the Federal Rules of Evidence and I tell my students about the Committee, so to be able to go and present before the Committee, I was so very excited!”