Chapter 32 Waiver: New Rules and Public Policy Debates

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 32

WAIVER: NEW RULES AND PUBLIC POLICY DEBATES

32.1 INTRODUCTION

Several new rules and public policy debates focus on attorney-client privilege waivers.

32.2 FEDERAL RULES AND POST-PRODUCTION PRIVILEGE CLAIMS

Relatively recent federal rules changes permit post-production privilege claims. ¹

32.3 FEDERAL RULE OF EVIDENCE 502

Federal Rule of Evidence 502 adopted the previous majority common law approach to inadvertent express waivers. Under Rule 502, inadvertent express waivers do not result in subject matter waivers. ²

32.4 FEDERAL RULES GOVERNING TESTIFYING EXPERTS

Several relatively recent federal rules changes materially expand protection for testifying experts' draft reports and communications with lawyers. ³

32.5 GOVERNMENTAL REQUESTS FOR WAIVER OF PROTECTIONS

During the Bush Administration, some complained of the federal government's perceived "bullying" of corporations into waiving their privilege protection. [32.501]

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Such arguably partisan critics condemned the government's more lenient treatment of corporations...