ER 502 - Attorney-Client Privilege and Work Product; Limitations on Waiver

• Proposed New Rule ER 502 - Attorney-Client Privilege and Work Product; Limitations on Waiver (in Word Format)
• No comments are available at this time.

Purpose: This suggested amendment would fill a gap in Washington law regarding the inadvertent disclosure of privileged communications or work product. The existing law consists of RPC 4.4(b), which provides: “A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” However, Comments 2 and 3 of that rule make clear that it imposes no duty beyond the notification requirement.

Washington law would evolve further, but still not completely, if the Court were to adopt suggested amendments to CR 26 and 45, which the Court has published for comment. If adopted, those amendments would establish what is often referred to as a “claw back” procedure that is based on 2006 amendments to Federal Rules of Civil Procedure 26 and 45. The procedure would allow parties to assert claims of an inadvertent production of privileged communications or work product. However, that procedure would not affect the law that controls the substantive resolution of those claims.

Until recently, there was essentially no law in Washington regarding whether, and under what circumstances, the inadvertent disclosure of attorney-client privilege and work product material caused a waiver of those protections. See Harris v. Drake, 152 Wn.2d 480, 495, 99 P.3d 872 (2004) (Alexander, C.J., dissenting) (“Indeed, there are no Washington cases discussing the inadvertent disclosure of work product protected materials.”)

The current suggested amendment would fill that gap by providing the substantive law to resolve such waiver claims. The amendment would add a new Rule of Evidence 502 based closely on Federal Rule of Evidence FRE 502, which was signed into law on September 19, 2008. The suggested new ER 502 would comprise six sections, each corresponding to a section of the federal rule¹:

(a) Disclosure made in a Washington State proceeding or to a Washington State office or agency; scope of a waiver. This section provides for when a disclosure of privilege communication can operate to waive the privilege for other, undisclosed communications. In other words, it addresses the scope of “subject matter waiver.”

(b) Inadvertent disclosure. This section provides for the circumstances under which an inadvertent disclosure in a Washington proceeding can cause the waiver of attorney-client privilege or work product protection.

(c) Disclosure made in a non-Washington State proceeding. This section provides for the circumstances under which a disclosure in a non-Washington proceeding, in the absence of a court order, can cause the waiver in a Washington proceeding of attorney-client privilege or work product protection.

(d) Controlling effect of a court order. This section provides for the effect of court orders on the waiver of privilege or work product.

(e) Controlling effect of a party agreement. This section provides for the effect of party agreement, in the absence of a court order, on the waiver of privilege or work product.

(f) Definitions. This section provides definitions for “attorney-client privilege” and “work-product protection” as used in the rule.

Following the federal model will provide Washington courts and practitioners access to authority interpreting that model. Several states (including Arizona, Arkansas, Iowa, Louisiana) are considering or have adopted some version of the federal rule in their evidence rules, civil rules, or both.

Suggested new ER 502 would be consistent with RPC 4.4(b) and would complement and work in concert with the pending suggested “claw back” amendments to CR 26 and CR 45.

Suggested new ER 502 would also be consistent with the Washington Court of Appeals’ recent use of the new federal rule to resolve a claim of an inadvertent waiver. Sitterson v. Evergreen School District No., 147 Wn. App. 576, 196 P.3d 735 (2008), was the first appellate ruling in Washington deciding whether inadvertent production waives the attorney-client privilege. The court noted that there are three potential approaches to waiver by inadvertent production: “(1) the traditional ‘absolute waiver’ approach…; (2) the absolute ‘no waiver’ approach; and (3) the ‘balanced’ approach.” Id., 147 Wn. App. at 585-86. The court decided to apply the “balanced approach,” and cited as support for that decision the fact that “Congress recently amended the federal rules of evidence to reflect a balanced approach to inadvertent waiver of the attorney client privilege.” Id. at 587-88 and n.8 (quoting FRE 502).

¹ The only section of the federal rule not mirrored in the suggested Washington rule is FRE 502(f), which deals with the controlling effect of the federal rule on other types of proceedings, including state proceedings. Such a provision is unnecessary in Washington, where there is no question of application of the ERs to an inferior jurisdiction and where the suggested new ER 502 will have the same application as all other ERs in Washington proceedings.