12 2 STA T .35 3 7PUBLIC LA W 11 0– 322 — S E PT. 1 9, 200 8PublicLaw1 1 0–32 2 110 thCongres s A n Act Toamendth e F ede r a lRu le s o fEvi den c e to address the w aiver of the attorne y- client p rivile g e and the wor k product doctrine .Beit e nac te dby t h e S enate and Hous eo fR e pr esentati v es of the U nited States of Am erica in C on g ress assemb l ed ,SECTION1.A TTO R NE Y- C L IENT P RI V ILE G EAN DW OR K PROD U CT
LI M ITATIONS ON WAIVER. (a)INGE NE RAL.—ArticleVof t h e F e d eral Ru le s of Ev ide n ce isa m ended by addin g at the end the follo w ing
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‘ Rule502.At t orn e y-C l i ent P ri v ile g e a n dW or k Produ c t
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i m itation s on Waiver ‘ ‘ T he following p rovisions apply , in the circumstances set out, to disclosure of a communication or information covered by the attorney - client privilege or wor k -product protection. ‘‘(a) DISC L O S U RE M A D E IN A FEDERAL P ROCEEDIN G OR T OA FEDERAL OF FICE OR AGENC Y;S CO P EOFA W AI V ER.—When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver e x tends to an undisclosed communication or information in a Federal or State proceeding only if: ‘‘( 1 ) the waiver is intentional; ‘‘( 2 ) the disclosed and undisclosed communications or information concern the same sub j ect matter; and ‘‘( 3 ) they ought in fairness to be considered together. ‘‘(b) INADVERTENT DISCLOSURE.—When made in a Federal pro- ceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: ‘‘(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, including (if applicable) following Federal Rule of C ivil Procedure 2 6 (b)( 5 )( B ). ‘‘(c) DISCLOSURE MADE IN A STATE PROCEEDING.—When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure: ‘‘(1) would not be a waiver under this rule if it had been made in a Federal proceeding; or ‘‘(2) is not a waiver under the law of the State where the disclosure occurred. 28USCap p . S e p t . 19, 2 0 08 [ S.2 45 0 ]
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