Arkansas Supreme Court Submits Proposed Changes to Rule of Evidence 502; Recommends Arkansas Adopt Minority Selective-Wavier View of Eighth Circuit as to Attorney-Client Privilege
On recommendation from the Arkansas Bar Association, revised Rule 503(e) and (f) would read:
(e) Inadvertent disclosure. A disclosure of a communication or
information covered by the attorney-client privilege or the work-product
doctrine does not operate as a waiver if the disclosing party follows the
procedure specified in Rule 26(b)(5)(D) of the Arkansas Rules of Civil
Procedure and, in the event of a challenge by a receiving party, the circuit court
finds in accordance with Rule 26(b)(5) that there was no waiver.(f) Selective waiver. Disclosure of a communication or information
covered by the attorney-client privilege or the work-product doctrine to a
governmental office or agency in the exercise of its regulatory, investigative, or
enforcement authority does not operate as a waiver of the privilege or protection
in favor of non-governmental persons or entities.
The comment recognizes that the proposed changes reflect a "selective waiver" of inadvertent disclosure, which is the minority view in American jurisdictions. I would, however, harmonize the Arkansas rule with the Eighth Circuit's rule, perhaps simplifying things for Arkansas practitioners.
The Court has asked for public comments, to be sent the Clerk of the Arkansas Supreme Court and Court of Appeals.
