From Crime & Consequences, a change has been made to Rule 502 of the Federal Rules of Evidence to protect against the inadvertent waiver of privilege.  In essence, before any waiver can be found, the court must hold that the waiver was intentional and not a mistake.  While we were all watching our portfolios dwindle, the government was actually doing some work, and on September 19, 2008, the President signed this change into law, effective immediately.

The full text of the new rule can be found here, and the important parts state:

(A) DISCLOSURE MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL OFFICE OR AGENCY; SCOPE OF A WAIVER.—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 extends 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 subject matter; and
(3) they ought in fairness to be considered together.

(b) INADVERTENT DISCLOSURE.—When made in a Federal proceeding 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 Civil Procedure 26(b)(5)(.

Also included is that the rule change prevents the Elkins “silver platter” scam, moving the case from federal to state court to get the benefit of waiver, by extending the reach of new Rule 502 to prevent waiver if the case is moved in either direction.

According to the Senate Judiciary Committee report, the genesis of this change is the problems encountered in massive electronic data discovery, where in the course of providing thousands of pages of disclosure, a page of privileged communication finds its way in.  Previously, this might constitute a wholesale waiver of privilege though it was clearly a mistake.  The old answer was, “hey, then don’t make mistakes,” but that didn’t help much since stercus accidit.

In criminal proceedings, only good can come from this rule change.  While in most street-type crimes, like drug conspiracies, there is no discovery provided by the defense, that’s not always the case in white-collar prosecutions where there is a far greater possibility that the defense will seek to introduce documents or offer witnesses at trial and that some disclosure will be required.  For those who don’t often provide disclosure, and even for those who do, this will provide a measure of protection if a mistake happens.

The key that must be borne in mind is that it remains incumbent upon the defense to take “reasonable steps to prevent disclosure,” and, more importantly, take “reasonable steps to rectify the error.”  In other words, should it happen and you become aware of it, you must immediately note that it’s privileged and demand the return of the inadvertently disclosed privileged communication.  Let it sit and you can be up the creek.