Proposed New Rule ER Washington State Courts

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					                                    SUGGESTED NEW RULE
                    WASHINGTON RULES OF EVIDENCE (ER)
     ER 502 – ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS
                                 ON WAIVER



1           The following provisions apply, in the circumstances set out, to disclosure of a
2    communication or information covered by the attorney-client privilege or work-product
3    protection.
4           (a) Disclosure Made in a Washington Proceeding or to a Washington Office or
5    Agency; Scope of a Waiver. When the disclosure is made in a Washington proceeding or to a
6    Washington office or agency and waives the attorney-client privilege or work-product protection,
7    the waiver extends to an undisclosed communication or information in any proceeding only if:
8             (1) the waiver is intentional;
9             (2) the disclosed and undisclosed communications or information concern the same
10            subject matter; and
11            (3) they ought in fairness to be considered together.
12          (b) Inadvertent Disclosure. When made in a Washington proceeding or to a
13   Washington office or agency, the disclosure does not operate as a waiver in any proceeding if:
14            (1) the disclosure is inadvertent;
15            (2) the holder of the privilege or protection took reasonable steps to prevent disclosure;
16            and
17            (3) the holder promptly took reasonable steps to rectify the error, including (if
18            applicable) following CR 26(b)(6).[1]
19          (c) Disclosure Made in a Non-Washington Proceeding. When the disclosure is made
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       The Court has published for comment a suggested amendment to add a new CR 26(b)(6). The
22   text of this suggested amendment assumes adoption of the new CR 26(b)(6). If the Court does
     not adopt that new subsection, the phrase “, including (if applicable) following CR 26(b)(6)”
23   should be removed from this suggested new rule.
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     Suggested New Rule, ER 502                                  Washington State Bar Association
25   Page 1                                                       1325 Fourth Ave - Suite 600
                                                                    Seattle, WA 98101-2539
26
                                  SUGGESTED NEW RULE
                     WASHINGTON RULES OF EVIDENCE (ER)
     ER 502 – ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS
                                 ON WAIVER



1    in a non-Washington proceeding and is not the subject of a court order concerning waiver, the
2    disclosure does not operate as a waiver in a Washington proceeding if the disclosure:
3             (1) would not be a waiver under this rule if it had been made in a Washington
4             proceeding; or
5             (2) is not a waiver under the law of the jurisdiction where the disclosure occurred.
6           (d) Controlling Effect of a Court Order. A Washington court may order that the
7    privilege or protection is not waived by disclosure connected with the litigation pending before
8    the court—in which event the disclosure is also not a waiver in any other proceeding.
9           (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure
10   in a Washington proceeding is binding only on the parties to the agreement, unless it is
11   incorporated into a court order.
12          (f) Definitions. In this rule:
13            (1) “attorney-client privilege” means the protection that applicable law provides for
14            confidential attorney-client communications; and
15            (2) “work-product protection” means the protection that applicable law provides for
16            tangible material (or its intangible equivalent) prepared in anticipation of litigation or
17            for trial.
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     Suggested New Rule, ER 502                                   Washington State Bar Association
25   Page 2                                                        1325 Fourth Ave - Suite 600
                                                                     Seattle, WA 98101-2539
26

				
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posted:10/21/2012
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