Federal Evidence Review

The Rule Amendments Page provides information and updates about amendments to the Federal Rules of Evidence and the amendment process. Click on one of the departments below for further information:

I. Proposed Amendments Pending for 2008

A. Update On Passage of New FRE 502 — Providing a summary of the steps by the Advisory Committee on Rules, the Judicial Conference, and Congress to assess this new rule of evidence concerning the waiver of the attorney-client privilege and work product doctrine

B. Summary of Proposals for the New FRE 502 — Providing an overview of the amendment for the Federal Rules of Evidence as considered by the Advisory Rules Subcommittee on the Evidence Rules and as covered in congressional activities.

C. Text of S.2450, H.R. 3013 And FRE 502 As Originally Proposed By The Advisory Committee On Evidence Rules — Providing the text of the current proposal reflected in S. 2450 and H.R. 3013 (Attorney-Client Privilege Protection Act of 2007), as well as earlier proposals by the Advisory Committee

D. Advisory Committee Comment on Proposed New FRE 502

E. Timeline for Proposed FRE 502

F. Text And Draft ACN of Proposed Amendment to FRE 804(b)(3)

G. Amendment Action Timeline For Proposed Amendment to FRE 804(b)(3) For 2008

II. Prior Evidence Amendments

B. 2005 Amendments — Report on amendments considered in 2005 for the Federal Rules of Evidence

C. 2004 Amendment — Report on amendment considered in 2004 for the Federal Rules of Evidence, including Amendment Action Timeline highlighting activity and reports on the proposed amendment to FRE 804(b)(3) (Statements Against Interest), which was not transmitted by the U.S. Supreme Court

D. 2003 Amendment — Report on amendment considered in 2003 for the Federal Rules of Evidence, including Amendment Action Timeline highlighting activity and reports on the proposed amendment to FRE 608(b) (Specific Instances of Conduct), which became effective December 2003

E. Historical Documents — Links to historical documents of interest on past amendments to the FRE by the judicial policy bodies involved in considering and adopting the amendments

III. Advisory Committee On Evidence Rules

A. Federal Evidence Review's Docket of Advisory Committee Actions On Past Amendments — Past committee actions on amendments to the Federal Rules of Evidence

B. Background On The Rule-Making Process — Information and links dealing with the judicial rule-making process

C. Report by Advisory Committee on Rules — Text of Advisory Committee Report on amendments adopted in 2006

IV. Other FRE Reports Of Interest

A. Other Significant Reports— Links to other significant reports on the operation of the Federal Rules of Evidence

I. Proposed Amendments Pending For 2008

This section contains a summary of any amendments, the text of the amendments and other background information under consideration in 2008.

FRE 502 Concerning Attorney-Client Privilege and Work Product Protection: The major amendment, considered by the Advisory Committee on Evidence Rules, deals with the waiver of the attorney-client privilege. This issue was considered twice by the Federal Evidence Review. First, in Lead Story: "Are Further Changes On The Horizon Concerning The Corporate Attorney-Client Privilege And Work Product Protection?: The New McNulty Memorandum, Recent Congressional Action, And Proposed FRE 502 Suggest A Ripe Environment For Even Further Standards To Be Promulgated," 4 Fed. Evid. Rev. 25 (Jan 2007). After passage of the new rule, the Review assessed the results of the effort that ended with adoption of the new rule: Lead Story: "Understanding New FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)"," 5 Fed. Evid. Rev. 1454 (Oct. 2008) Further background on the rule and action in Congress is noted below.

New Action On Journalist's Privilege? On October16, 2007 the House of Representatives passed "The Free Flow of Information Act of 2007" (H.R. 2102) by a vote of 398-21. That bill would create a shield to protect a reporter from legal processes that would compel the reporter to produce documents, provide testimony or identify confidential informants. On October 4, 2007 the Senate Judiciary Committee approved a similar measure (S. 2035) by a 15-2 vote and the matter is pending debate on the Senate floor. These congressional measures are designed to create a new protection for journalists one that would replace rather than supplement the current doctrine of the journalist privilege in the federal courts. The Bush Administration indicates that the President will veto the measure claiming it would "severely frustrate and in some cases completely eviscerate the Federal government’s ability to investigate acts of terrorism and other threats to national security." The background and developments of these actions are addressed in the Lead Story of the January 2008 issue of the Federal Evidence Review. The article reviews the traditional scope of the journalist privilege and considers recent developments that have reformed that privilege in the federal courts as well as the recent Congressional response to the latest developments in the evolution of the journalist privilege in the federal courts.

Update On Proposed
Federal Rule Of Evidence 502

Both the U.S. Judicial Conference, its Rules Committees and Congress have taken actions designed to add to the Federal Rules of Evidence a Rule 502. This new rule concerns the preservation of the attorney-client privilege and work product protections available to certain organizations. These actions include:

• Sept. 19, 2008 - President signs S. 2450, enacting FRE 502 effective as of Sept. 19, 2008
• Sept. 8, 2008 - House passes S. 2450: 154 Cong. Rec. H7817-H7820 (Sept. 8, 2008) and includes Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence
• Senate Passes S. 2450 – February 27, 2008: The U.S. Senate passed S. 2450, which would establish new FRE 502. The Senate measure has been referred to the U.S. House of Representatives.
• Senate Judiciary Committee Report: The Senate Judiciary Committee issues its report. Sen. Rep. No. 264, 110th Cong., 2d Sess. (2008). The Report notes that the Senate measure is the same as the proposal of the U.S. Judicial Conference. See Sen. Rep. No. 264, 110th Cong., 2d Sess. 4 (2008).
• Senate Judiciary Committee – January 31, 2008:The Senate Judiciary Committee approved without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. According to the Administrative Office of the U.S. Courts, the measure "addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007."
• U.S. Senate – December 11, 2007: Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) and ranking committee member Arlen Specter (R-Penn.) introduced S. 2450 to add a new FRE 502. Leahy remarked that the proposed rule would help minimize the burden of guarding against inadvertent release of privileged attorney-client and attorney work product materials during discovery. The bill incorporates text recommended by the United States Judicial Conference and would help litigants avoid waiving the privilege on inadvertent disclosures if parties took reasonable efforts to vet the documents and asked for the return of any privileged information in a timely manner.
• U.S. House of Representatives – November 13, 2007: The House passed the Attorney-Client Privilege Protection Act of 2007, H.R. 3013. The bill was designed to reverse the effects of the Holder/Thompson/McNulty Department of Justice memos on the waiver of attorney-client privileges by subjects being investigated by government agencies. The bill amends the Federal Rules to incorporate a new rule on the preservation of the attorney-client privilege and work product.
• House Judiciary Committee Report: The House Judiciary Committee issues its report on H.R. 3013 . H. Rep. No. 445, 110th Cong.,1st Cong. (Nov. 13, 2007). The House measure has been referred to the Senate for its consideration.
• U.S. Judicial Conference – September 18, 2007: During its Fall meeting, the Conference approved recommendations from the Standing Committee on Rules of Practice and Procedure that the Federal Rules of Evidence be amended by adding a new evidence rule 502. The Conference approved the draft of FRE 502 and agreed that it should be submitted to Congress.
• Standing Rules Committee Action - June 2007 Meeting: According to the Administrative Office of the U.S. Courts, "at its June 11-12, 2007, meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committees on Bankruptcy, Criminal, and Evidence Rules and approved the following proposed amendments and new rules: * * * Evidence Rule 502. The Committee also approved a letter to Congress accompanying proposed new Evidence Rule 502 and a report to Congress on creating a harm-to-child exception to marital privileges. The Committee will now transmit the proposed new rules and amendments to the Judicial Conference with a recommendation that they be approved and transmitted to the Supreme Court.""
• Evidence Rules Committee Action - April 2007 Meeting: As reported by the Administrative Office of the U.S. Courts, "at its April 12-13, 2007, meeting, the Advisory Committee on Evidence Rules considered public comments on proposed new Evidence Rule 502, which was published for comment in August 2006. The advisory committee approved the proposed new rule, with modifications. The advisory committee will transmit the proposed new rule to the Committee on Rules of Practice and Procedure with a recommendation that it be approved and transmitted to the Judicial Conference for its consideration. The advisory committee also approved sending a report to Congress, suggesting that it is neither necessary nor desirable to amend the Federal Rules of Evidence to make the confidential marital communications privilege and the adverse spousal privilege inapplicable in any Federal proceeding in which a spouse is charged with a crime against . . . (1) a child of either spouse; or (2) a child under the custody or control of either spouse, as required by the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. No. 109-248). Finally, the advisory committee also approved proceeding with the restyling of the Federal Rules of Evidence."

Summary Of Proposed New Federal Rule Of Evidence 502
As Developed By The Advisory Committee On Evidence Rules

As described by the Advisory Committee on Evidence Rules, the recommended amendment to the Federal Rules of Evidence would create a new rule (Rule 502). This new rule is designed to resolve problems with the current federal common law governing the waiver of attorney-client privilege and work product.

The Advisory Committee was concerned with the significant amounts of time and effort expended during litigation to preserve the privilege, even when many of the documents are of no concern to the producing party.

Parties must be careful because if a privileged document is produced, there is a risk that a court will find a subject matter waiver that will apply not only to the instant case and document but to other cases and documents as well. Also, such expense is devoted to production in order to protect against inadvertent disclosure of privileged information, because the producing party risks a ruling that even a mistaken disclosure can result in a subject matter waiver. The Committee determined that the discovery process would be more efficient and less costly if documents could be produced without risking a subject matter waiver of the attorney-client privilege or work product protection.

To achieve these goals, the committee designed a proposal in which:

1. A subject matter waiver should be found only when privilege or work product has already been disclosed, and a further disclosure "out in fairness" be required in order to protect against a misrepresentation that might arise from the previous disclosure.
2. An inadvertent disclosure should not constitute a waiver if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error.
3. A provision on selective waiver should be included in any proposed rule released for public comment, but should be placed in brackets to indicate that the Committee has not yet determined whether a provision on selective waiver should be sent to Congres
4. Parties to litigation should be able to protect against the consequences of waiver by seeking a confidentiality order from the court; and in order to give the parties reliable protection, that confidentiality order must bind non-parties in any federal or state court.
5. Parties should be able to contract around common-law waiver rules by entering into confidentiality agreements; but in the absence of a court order, these agreements cannot bind non-parties.

Text Of S. 2450, H.R. 3013 And FRE 502 As Originally Proposed By The Advisory Committee On Evidence Rules

Text Of S. 2450

The text of S. 2450 as passed by the U.S. Senate on February 27, 2008:

Text Of H.R. 3013

The text of H.R. 3013 as passed by the House of Representatives, November 13, 2007:

The text of proposed Rule 502 as approved by the Advisory Committee on Rules of Evidence as it appeared in July 2006, prior to publication:

Advisory Committee Comment On Proposed New Federal Rule Of Evidence 502

(Pagination indicated in brackets from the June 2006 draft)

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Committee Note

This new rule has two major purposes:

1. It resolves some longstanding disputes in the courts about the effect of certain disclosures of material protected by the attorney-client privilege or the work product doctrine— specifically those disputes involving inadvertent disclosure and selective waiver.
2. It responds to the widespread complaint that litigation costs for review and protection of material that is privileged or work product have become prohibitive due to the concern that any disclosure of protected information in the course of discovery (however innocent or minimal) will operate as a subject matter waiver of all protected information. This concern is especially troubling in cases involving electronic discovery.

See, e.g., Rowe Entertainment, Inc. v. William Morris Agency, 205 F.R.D. 421, 425- 26 (S.D.N.Y. 2002) (finding that in a case involving the production of e-mail, the cost of pre-production review for privileged and work product material would cost one defendant $120,000 and another
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defendant $247,000, and that such review would take months). See also Report to the Judicial Conference Standing Committee on Rules of Practice and Procedure by the Advisory Committee on the Federal Rules of Civil Procedure, September 2005 at 27 ("The volume of information and the forms in which it is stored make privilege determinations more difficult and privilege review correspondingly more expensive and time-consuming yet less likely to detect all privileged information."); Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005) (electronic discovery may encompass "millions of documents" and to insist upon "record-by-record preproduction privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation") .

The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of communications or information covered by the attorney-client privilege or work product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant to a confidentiality order, the court’s order will be enforceable. For example, if a federal court’s confidentiality order is not enforceable in a state court then the burdensome costs of privilege review and retention are unlikely to be reduced. The Committee is well aware that a privilege rule proposed through the rulemaking process cannot bind state courts, and indeed that a rule of privilege cannot take effect through the ordinary rulemaking process. See 28 U.S.C § 2074(b). It is therefore anticipated that Congress must enact this rule directly, through its authority under the Commerce Clause. Cf. Class Action Fairness Act of 2005, 119 Stat. 4, PL 109-2 (relying on Commerce Clause power to regulate state class actions).
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The rule makes no attempt to alter federal or state law on whether a communication or information is protected as attorney-client privilege or work product as an initial matter. Moreover, while establishing some exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine generally.

The rule governs only certain waivers by disclosure. Other common-law waiver doctrines may result in a finding of waiver even where there is no disclosure of privileged information or work product. See, e.g., Nguyen v. Excel Corp., 197 F.3d 200 (5th Cir. 1999) (reliance on an advice of counsel defense waives the privilege with respect to attorney-client communications pertinent to that defense); Ryers v. Burleson,, 100 F.R.D. 436 (D.D.C. 1983) (allegation of lawyer malpractice constituted a waiver of confidential communications under the circumstances). The rule is not intended to displace or modify federal common law concerning waiver of privilege or work product where no disclosure has been made.

Subdivision (a). The rule provides that a voluntary disclosure generally results in a waiver only of the communication or information disclosed; a subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to protect against a selective and misleading presentation of evidence to the disadvantage of the adversary. See, e.g., In re von Bulow, 828 F.2d 94 (2d Cir. 1987) (disclosure of privileged information in a book did not result in unfairness to the adversary in a litigation, therefore a subject matter waiver was not warranted); In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage). The language concerning subject matter waiver —ought in fairness— is taken from Rule 106,because the animating
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principle is the same. A party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation. See, e.g., United States v. Branch, 91 F.3d 699 (5th Cir. 1996) (under Rule 106, completing evidence was not admissible where the party’s presentation, while selective, was not misleading or unfair). The rule rejects the result in In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989), which held that inadvertent disclosure of documents during discovery automatically constituted a subject matter waiver.

Subdivision (b). Courts are in conflict over whether an inadvertent disclosure of privileged information or work product constitutes a waiver. A few courts find that a disclosure must be intentional to be a waiver. Most courts find a waiver only if the disclosing party acted carelessly in disclosing the communication or information and failed to request its return in a timely manner. And a few courts hold that any mistaken disclosure of protected information constitutes waiver without regard to the protections taken to avoid such a disclosure. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005) for a discussion of this case law.

The rule opts for the middle ground: inadvertent disclosure of privileged or protected information in connection with a federal proceeding constitutes a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver. See, e.g., Zapata v. IBP, Inc., 175 F.R.D. 574, 576-77 (D. Kan. 1997) (work product); Hydraflow, Inc. v. Enidine, Inc., 145 F.R.D. 626, 637 (W.D.N.Y. 1993) (attorney-client privilege); Edwards v. Whitaker, 868 F.Supp. 226, 229 (M.D. Tenn. 1994) (attorney-client privilege). The rule establishes a compromise between two competing premises. On the one hand, information
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covered by the attorney-client privilege or work product protection should not be treated lightly. On the other hand, a rule imposing strict liability for an inadvertent disclosure threatens to impose prohibitive costs for privilege review and retention, especially in cases involving electronic discovery. The rule refers to "inadvertent  disclosure, as opposed to using any other term, because the word "inadvertent" is widely used by courts and commentators to cover mistaken or unintentional disclosures of information covered by the attorney-client privilege or the work product protection. See, e.g., Manual for Complex Litigation Fourth § 11.44 (Federal Judicial Center 2004) (referring to the "consequences of inadvertent waiver"); Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993) ("There is no consensus, however, as to the effect of inadvertent disclosure of confidential communications.").

Subdivision (c): Courts are in conflict over whether disclosure of privileged or protected information to a government agency conducting an investigation of the client constitutes a general waiver of the information disclosed. Most courts have rejected the concept of "selective waiver," holding that waiver of privileged or protected information to a government agency constitutes a waiver for all purposes and to all parties. See, e.g., Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414 (3d Cir. 1991). Other courts have held that selective waiver is enforceable if the disclosure is made subject to a confidentiality agreement with the government agency. See, e.g., Teachers Insurance & Annuity Association of America v. Shamrock Broadcasting Co., 521 F. Supp. 638 (S.D.N.Y. 1981). And a few courts have held that disclosure of protected information to the government does not constitute a general waiver, so that the information remains shielded from use by other
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parties. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977). The rule rectifies this conflict by providing that disclosure of protected information to a federal government agency exercising regulatory, investigative or enforcement authority does not constitute a waiver of attorney-client privilege or work product protection as to non-governmental persons or entities, whether in federal or state court. A rule protecting selective waiver in these circumstances furthers the important policy of cooperation with government agencies, and maximizes the effectiveness and efficiency of government investigations. See In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 314 (6th Cir. 2002) (Boggs, J., dissenting) (noting that the "public interest in easing government investigations" justifies a rule that disclosure to government agencies of information covered by the attorney-client privilege or work product protection does not constitute a waiver to private parties).

The Committee considered whether the shield of selective waiver should be conditioned on obtaining a confidentiality agreement from the government agency. It rejected that condition for a number of reasons. If a confidentiality agreement were a condition to protection, disputes would be likely to arise over whether a particular agreement was sufficiently air-tight to protect against a finding of a general waiver, thus destroying the predictability that is essential to proper administration of the attorney-client privilege and work product immunity. Moreover, a government agency might need or be required to use the information for some purpose and then would find it difficult or impossible to be bound by an air-tight confidentiality agreement, however drafted. If a confidentiality agreement were nonetheless required to trigger the protection of selective waiver, the policy of furthering cooperation with and efficiency in government investigations would be undermined.
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Ultimately, the obtaining of a confidentiality agreement has little to do with the underlying policy of furthering cooperation with government agencies that animates the rule.

Subdivision (d). Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. See Manual for Complex Litigation Fourth § 11.446 (Federal Judicial Center 2004) (noting that fear of the consequences of waiver "may add cost and delay to the discovery process for all sides" and that courts have responded by encouraging counsel "to stipulate at the outset of discovery to a ‘nonwaiver’ agreement, which they can adopt as a case-management order."). But the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the information can be used by nonparties to the litigation.

There is some dispute on whether a confidentiality order entered in one case can bind non-parties from asserting waiver by disclosure in a separate litigation. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D.Md. 2005) for a discussion of this case law. The rule provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, according to the terms agreed to by the parties, its terms are enforceable against non-parties in any federal or state proceeding. For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of "claw-back" and "quick peek" arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product. As such, the rule provides a party with a predictable protection that is necessary to allow that
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party to limit the prohibitive costs of privilege and work product review and retention.

Subdivision (e). Subdivision (e) codifies the well-established proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among them. See, e.g., Dowd v. Calabrese, 101 F.R.D. 427, 439 (D.D.C. 1984) (no waiver where the parties stipulated in advance that certain testimony at a deposition "would not be deemed to constitute a waiver of the attorney-client or work product privileges"); Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into "so-called ‘claw-back’ agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privilege documents"). Of course such an agreement can bind only the parties to the agreement. The rule makes clear that if parties want protection from a finding of waiver by disclosure in a separate litigation, the agreement must be made part of a court order.

Subdivision (f). The rule’s coverage is limited to attorney-client privilege and work product. The limitation in coverage is consistent with the goals of the rule, which are 1) to provide a reasonable limit on the costs of privilege and work product review and retention that are incurred by parties to litigation; and 2) to encourage cooperation with government investigations and reduce the costs of those investigations. These two interests arise mainly, if not exclusively, in the context of disclosure of attorney-client privilege and work product. The operation of waiver by disclosure, as applied to other evidentiary privileges, remains a question of federal common law. Nor does the rule purport to apply to the Fifth Amendment privilege against compelled self-incrimination.

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Rule 502 (Proposed)
Timeline

The process for considering the new rule of evidence is indicated below along with reports where available:

Date	Action
April 29-30, 2004	Advisory Committee Minutes - Rules Advisory Committee receives report from Professor Broun on the Project on Privileges. Professor Broun indicates he would continue work on "future developments" including a section on the attorney-client privilege; report received on Civil Rules Committee proposal for a rule governing procedure for making a claim that a disclosure was inadvertent.
May 15, 2004	Advisory Committee on Evidence Rules notified that the Civil Rules Committee is considering a rule regarding waiver/forfeiture of privilege by inadvertent disclosure during the course of discovery.
April 28, 2005	Advisory Committee Minutes reflect that the Rules Advisory Committee considered presentation by Professor Broun, consultant to the Committee's privilege project. The presentation focused on his proposal for a statute that would treat the question of inadvertent disclosure of privileged material. The Committee agreed to review the draft and consider action on the subject of waiver of the attorney-client privilege.
May 16, 2005	Advisory Committee on Evidence Rules - Subcommittee on Privileges reports on its long-term project to "survey" federal common law of privileges, including its consideration of "whether a proposed statute can be drafted to permit parties under certain circumstances to produce documents in discovery without risking subject matter waiver".
Jan. 23, 2006	Letter of House Judiciary Committee Chairman James Sensenbrenner, Jr. to Ralph Mecham, Director, Administrative Office of the U.S. Courts, “urg[ing] the Judicial Conference to proceed with a rule-making that would protect against the forfeiture of privilege where a disclosure in discovery is the result of an innocent mistake; permit parties, and courts, to protect against the consequences of waiver by permitting disclosures of privileged information between the parties to a litigation; and allow persons and entities to cooperate with government agencies by turning over privileged information without waiving all privileges as to other parties in subsequent litigation.”
March 7, 2006	House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security Oversight Hearing on White Collar Enforcement: Attorney-Client Privilege and Corporate Waivers
April 24-25, 2006	Mini-Conference On Privilege Waiver - Advisory Committee on Evidence Rules convened a mini-conference on a proposed new evidentiary rule concerning waiver of the attorney-client privilege and work-product doctrine. Following the mini-conference, the Advisory Committee approved for publication proposed new Evidence Rule 502
June 22-23, 2006	Standing Committee Action - Standing Committee on Rules of the U.S. Judicial Conference approved recommendation by the Advisory Committee on Evidence Rules to publish for public comment proposed new rule of evidence 502.
August 2006	Text of proposed new Federal Rule Of Evidence 502, with advisory committee note, approved by the Standing Committee on Rules for publication.
August 2006	Proposed new Federal Rule Of Evidence published for public comment; anticipated deadline for receipt of comments: February 2007.
Sept. 12, 2006	"The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations," Hearing before the Senate Judiciary Committee, 109th Cong., 2d Sess. (Sept. 12, 2006)
November 16, 2006	Advisory Committee on Evidence Rules reviews issues concerning proposed new FRE 502 concerning waiver of attorney-client privilege and work product protection
January 4, 2007	Senator Arlen Specter, of Pennsylvania, introduces the Attorney-Client Privilege Protection Act of 2007 (S. 186, 110th Cong., 1st Sess.)
January 12, 2007	Rules Advisory Committee meeting and hearing in Phoenix, AZ
January 12, 2007	Rules Advisory Committee hearing in Phoenix, AZ; Hearing Transcript
January 29, 2007	Rules Advisory Committee meeting and hearing in New York, NY
February 2007	Final public comments due on proposed new FRE 502; pending comments available at Rules Committee Web site
April 2007	Advisory Committee On Evidence Rules Agenda For Committee Meeting, Agenda Materials, Rancho Santa Fe, California April 12-13, 2007 (including analyses, rule language alternatives, summary of comments received, and other background materials on the proposed rule)
May 15, 2007	Report of the Advisory Committee on Evidence Rules to the Standing Committee on Rules of Practice and Procedure; recommending proposed FRE 502 be approved by the Standing Committee and forwarded to the Judicial Conference to be proposed to Congress
June 11-12, 2007	Standing Committee on Rules of Practice and Procedure approved letter to Congress recommending proposed FRE 502 and forwards proposal to the Judicial Conference
September 18, 2007	U.S. Judicial Conference considered the Standing Committee's draft letter to Congress concerning proposed FRE 502. The Conference approved the letter.
September 18, 2007	Senate Judiciary Committee: "Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum" The Senate hearings included testimony from: Deputy Attorney General Paul J. McNulty Former Attorney General Edwin Meese Thomas J. Donohue, President and CEO, U.S. Chamber of Commerce Karen J. Mathis, Esq., President, American Bar Association Andrew Weissmann, Esq., Partner, Jenner & Block LLP Director of the Department of Justice’s Enron Task Force; and Mark B. Sheppard, Esq., Partner, Sprague & Sprague
September 26, 2007	Letter of the U.S. Judicial Conference to Senator Patrick Leahy and Senator Arlin Specter Submitting Draft FRE 502
December 11, 2007	Senate Judiciary Committee Chair Leahy introduces S. 2450, based on the proposal approved by the Judicial Conference, concerning waiver of the attorney-client privilege and work product protections.
February 25, 2008	Senate Judiciary Committee issues report on S. 2450: Sen. Rep. No. 264, 110th Cong., 2d Sess. (2008).
February 27, 2008	Senate passes S. 2450: 154 Cong. Rec. S1317-S1319 (Feb. 27, 2008)
Sept. 8, 2008	House passes S. 2450: 154 Cong. Rec. H7817-H7820 (Sept. 8, 2008) and includes Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence
Sept. 19, 2008	President signs S. 2450, enacting FRE 502 effective as of Sept. 19, 2008

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Attorney-Client Privilege Protection Act of 2008
Timeline

The process for considering the Act is indicated below along with reports where available:

Date	Action
June 16, 1999	Memorandum from Deputy Attorney General Eric H. Holder, Jr. to Heads of Department Components and U.S. Attorneys, Bringing Criminal Charges Against Corporations (June 16, 1999) Holder Memo
January 20, 2003	Memorandum from Deputy Attorney General Larry Thompson to Heads of Department Components and U.S. Attorneys, Principles of Federal Prosecution of Business Organizations (Jan. 20, 2003) Thompson Memo
October 21, 2005	Memorandum from Acting Deputy Attorney General Robert D. McCallum, Jr. to Heads of Department Components and U.S. Attorneys, Waiver of Corporate Attorney-Client and Work Product Protection (Oct. 21, 2005) McCallum Memo
March 7, 2006	House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security Oversight Hearing on White Collar Enforcement: Attorney-Client Privilege and Corporate Waivers
Sept. 12, 2006	"The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations," Hearing before the Senate Judiciary Committee, 109th Cong., 2d Sess. (Sept. 12, 2006)
Dec. 12, 2006	Memorandum from Deputy Attorney General Paul J. McNulty to Heads of Department Components and U.S. Attorneys, Principles of Federal Prosecution of Business Organizations (Dec. 12, 2006) McNulty Memo
January 4, 2007	Senator Arlen Specter, of Pennsylvania, introduces the Attorney-Client Privilege Protection Act of 2007 (S. 186, 110th Cong., 1st Sess.)
September 18, 2007	Senate Judiciary Committee: "Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum" The Senate hearings included testimony from: Deputy Attorney General Paul J. McNulty Former Attorney General Edwin Meese Thomas J. Donohue, President and CEO, U.S. Chamber of Commerce Karen J. Mathis, Esq., President, American Bar Association Andrew Weissmann, Esq., Partner, Jenner & Block LLP Director of the Department of Justice’s Enron Task Force; and Mark B. Sheppard, Esq., Partner, Sprague & Sprague
September 26, 2007	Letter of the U.S. Judicial Conference to Senator Patrick Leahy and Senator Arlin Specter Submitting Draft FRE 502
November 13, 2007	House Judiciary Committee issues report on H.R. 3013: H. Rep. No. 445, 110th Cong., 1st Cong. (Nov. 13, 2007); U.S. Department of Justice indicates its strong opposition to H.R. 3013. See Letter of Brian A. Benczkowski to Honorable Nancy Pelosi, Speaker, U.S. House of Representatives (Nov. 13, 2007)
November 13, 2007	The House of Representatives passes H.R. 3013, the Attorney-Client Privilege Protection Act of 2007. The bill is transmitted to the Senate for consideration and is referred to the Senate Judiciary Committee.
June 23, 2008	Letter by over 30 former U.S. Attorneys to Senate Judiciary Committee Chair Leahy in support of adoption of S.186
June 26, 2008	Senator Specter introduced S. 3217 (The Attorney-Client Privilege Protection Act of 2008) which modifies his earlier bill, S. 186, introduced in January 2007. See 153 Cong. Rec. S6294 (daily ed. June 26, 2008) (Remarks of Sen. Specter upon introduction of S. 3217).
July 9, 2008	Attorney General Michael Mukasey testifies before the Senate Judiciary Committee and notes that a memorandum from the Deputy Attorney General is forthcoming
July 9, 2008	Deputy Attorney General Mark Filip letter to Senate Judiciary Committee Chairman Patrick Leahy and Ranking Minority Member Arlen Specter requesting time to implement department changes before any legislation is considered.
Aug. 28, 2008	Deputy Attorney General Mark Filip releases new DOJ revisions regarding Principles of Federal Prosecution of Business Organizations. Deputy Attorney General Mark R. Filip Press Conference at which the Deputy announces Revisions to Corporate Charging Guidelines New York, NY

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The report of actions by the Standing Committee on Rules of Practice and Procedure at its June 9-10 meeting now notes that the Committee approved publishing a proposed amendment to FRE 804(b)(3) (Statement Against Interest). The text of the proposed amendment, its advisory committee notes and the transmittal report from the Advisory Committee on Evidence Rules are posted below:

PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE

strike out indicates deletion; underline indicates insertion

Rule 804. Hearsay Exceptions; Declarant Unavailable

(b) Hearsay exceptions. - The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

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(3) Statement against interest. - A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Committee Note

The second sentence of Rule 804(b)(3) has been amended to provide that the corroborating circumstances requirement applies to all declarations against penal interest offered in criminal cases. A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution, even though the text of the Rule did not so provide. See, e.g., United States v. Alvarez, 584 F.2d 694, 701 (5thCir. 1978) ("by transplanting the language governing exculpatory statements onto the analysis for admitting inculpatory hearsay, a unitary standard is derived which offers the most workable basis for applying Rule 804(b)(3)"); United States v. Shukri, 207 F.3d 412 (7th Cir 2000) (requiring corroborating circumstances for against-penal-interest statements offered by the government). A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.

The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause. The Supreme Court in Crawford v Washington, 541 U.S. 36, 53-54 (2004), held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Courts after Crawford have held that for a statement to be admissible under Rule 804(b)(3), it must be made in informal circumstances and not knowingly to a law enforcement officer- and those very requirements of admissibility assure that the statement is not testimonial under Crawford [.] See, e g., United States v. Johnson, 495 F.3d 951 (81h Cir. 2007) (accomplice's statements implicating himself and the defendant in a crime were not testimonial as they were made under informal circumstances to another prisoner, with no involvement of law enforcement; for the same reasons, the statements were admissible under Rule 804(b)(3)); United States v. Franklin, 415 F.3d 537 (6th Cir. 2005) (admissions of crime made informally to a friend were not testimonial, and for the same reason they were admissible under Rule 804(b)(3)).

The amendment does not address the use of the corroborating circumstances for declarations against penal interest offered in civil cases.

May 12, 2008
Report of the Advisory Committee on Evidence Rules
To the Standing Committee on Rules of Practice and Procedure

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B. Proposed Amendment to Evidence Rule 804(b)(3)
At its Fall 2007 meeting the Evidence Rules Committee voted to consider the possibility of an amendment to Evidence Rule 804(b)(3), the exception to the hearsay rule for declarations against interest In its current form Rule 804(b)(3) requires an accused to provide corroborating circumstances clearly indicating the trustworthiness of a declaration against penal interest for the hearsay to be admissible, but by its terms the Rule imposes no similar requirement on the prosecution The Committee reviewed a proposed amendment that would extend the corroborating circumstances requirement to declarations against penal interest offered by the prosecution The possible need for the amendment arose after the Supreme Court's decision in Whorton v Bockting, which held that the Confrontation Clause provides no protection against unreliable hearsay if that hearsay is nontestimonial. If the prosecution has to show only that a declarant made a statement that tended to disserve his interest - i.e., all that is required under the terms of the existing rule - then it might well be that unreliable hearsay could be admitted against an accused.

At the Fall 2007 meeting, the Committee deferred to a request from the Department of Justice representative to wait before proposing an amendment until the Department had time to review the proposal and prepare a position. At the Spring 2008 meeting, the DOJ representative stated that the Department supported publication of an amendment to Rule 804(b)(3) that would extend the corroborating circumstances requirement to declarations against penal interest offered by the government in criminal cases. Committee members accordingly expressed strong interest in proceeding with the amendment to Rule 804(b)(3). Members stated that the rule would provide an important guarantee of reliability in criminal prosecutions, and could rectify confusion and dispute among the courts-- because some courts currently apply a corroborating circumstances requirement to statements offered by the government and some do not.

The Committee then discussed whether three issues that had been raised in the case law should be addressed in the text or note to a proposed amendment to Rule 804(b)(3). Those questions are as follows-

1. Should the corroborating circumstances requirement be extended to civil cases? Committee members noted that only one reported decision had extended the corroborating circumstances requirement to civil cases, and that there were no other significant reported cases on the subject. Given the dearth of authority, and the different policy questions that might be raised with respect to declarations against penal interest offered in civil cases, the Committee decided unanimously not to address the applicability of the corroborating circumstances requirement to civil cases.
2. Should the amendment consider the applicability of the Supreme Court's decision in Crawford v Washington? Under Crawford v. Washington, a declaration against penal interest cannot be admitted against an accused if it is testimonial. Committee members considered whether to provide a textual limitation in Rule 804(b)(3), i.e., that "testimonial" declarations against penal interest are not admissible against the accused. The Committee determined that this language was unnecessary, because federal courts after Crawford have uniformly held that if a statement is testimonial, it by definition cannot satisfy the admissibility requirements of Rule 804(b)(3) A statement is "testimonial" when it is made to law enforcement officers with the primary motivation that it will be used in a criminal prosecution - but such a statement cannot be a declaration against penal interest because the Supreme Court held in Williamson v United States that statements made to law enforcement officers cannot qualify under the exception as a matter of evidence law [.] Because of the fit between the hearsay exception and the right to confrontation, Committee members saw no need to refer to the Crawford standard in the text of the rule - especially since to do so could create a negative inference with respect to the hearsay exceptions that are not amended. The Committee agreed, however, to add language to the Committee Note to explain why the text of the Rule does not address Crawford [.]
3. Should the amendment resolve some disputes in the courts about the meaning of "corroborating circumstances"? Committee members noted that there are a few decisions that define "corroborating circumstances" as prohibiting any consideration of independent evidence that corroborates the assertions of the hearsay declarant. These courts appear to be relying on pre-Crawford Confrontation Clause jurisprudence that is no longer applicable. Members noted, however, that the disagreement in the courts about the meaning of "corroborating circumstances" did not run very deep, and that the few courts that are relying on outmoded constitutional law are likely to change their approach when the issue is directly addressed. Eight members of the Committee voted not to include any definition of corroborating circumstances in the text or Committee Note to the proposed amendment. One member dissented.

After discussion, the Committee voted unanimously to refer the proposed amendment to Rule 804(b)(3), and the Committee Note, to the Standing Committee, with the recommendation that the amendment be released for public comment. Committee members noted that the Rule would have to be restyled as part of the restyling project, but resolved unanimously that the proposed substantive change should proceed on a separate track and timeline. Thus, Rule 804(b)(3), together with its substantive change if approved, will be restyled together with all the other hearsay exceptions in the third part of the restyling project.

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Recommendation: The Evidence Rules Committee recommends that the proposed amendment to Rule 804(b)(3) be approved for release for public comment.

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G. Amendment Action Timeline For Proposed Amendment to FRE 804(b)(3) For 2009

The process for considering the amendment of the declaration against interest doctrine in FRE 804(b)(3) is indicated below along with reports where available:

Date	Action
April 12-13, 2007	Minutes of the Meeting of the Advisory Committee on Evidence Rules notes that the committee “directed the Reporter to prepare a memorandum for the next meeting, on whether it is necessary to amend Rule 804(b)(3) to require that the government provide corroborating circumstances guaranteeing trustworthiness before a declaration against penal interest can be admitted against an accused.”
November 16, 2007	Minutes of the Meeting of the Advisory Committee on Evidence Rules report: The Committee confirmed interest in an amendment to FRE 804(b)(3) A representative of the Department of Justice requested the Committee not act on an amendment yet and agreed to provide information at the next meeting
Dec. 1, 2007 Report of the Advisory Committee on Evidence Rules	Report noting Nov. 16, 2007 meeting of the Advisory Committee on Evidence Rules considered possible amendment to FRE 804(b)(3) to provide a uniform requirement for establishing corroborating circumstances guaranteeing trustworthiness
Jan. 14-15, 2008 Committee Minutes	Minutes of the Committee On Rules Of Practice And Procedure notes that the Advisory Committee On Evidence Rules is reviewing an amendment to FRE 804(b)(3)
May 12, 2008 Report of the Advisory Committee on Evidence Rules	Advisory Committee on Evidence Rules recommends FRE 804(b)(3) amendment
June 9-10, 2008 Committee on Rules of Practice and Procedure Meeting	Committee adopted the recommendations of the Advisory Committee on Evidence Rules and approved publishing for public comment proposed amendment to FRE 804(b)(3)

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II. Prior Evidence Amendments

This section provides a status on recent evidence amendments and access to historical documents concerning past amendments considered by judicial committees to the Federal Rules of Evidence and the rulemaking process. .

A. 2006 Amendments

In 2006, the Supreme Court transmited four amendments to Congress for the Federal Rules of Evidence under the Rules Enabling Act. The four amendments, which became effective December 2006, included: FRE 404(a) (Character Evidence Generally), FRE 408 (Compromise and Offers to Compromise), FRE 606(b) (Competency of Juror as Witness: Inquiry Into Validity of Verdict or Indictment), FRE 609 (Impeachment by Evidence of Conviction of Crime)

1. Summary Of 2006 Amendments

As described by the Administrative Office of the U.S. Courts, the following four amendments were transmitted by the United States Supreme Court to the Congress for final consideration under the Rules Enabling Act:

Rule	Summary Of Proposed Amendment
Federal Rule of Evidence 404(a) Character Evidence Generally	"Under amended Rule 404 (Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes), evidence of a person's character is never admissible to prove conduct in a civil case. The advisory committee concluded that a clear rule is necessary to resolve a conflict in the case law and avoid the serious risks of prejudice, confusion, and delay that may arise when character evidence is used to prove that a person acted in conformity with the character trait." Amendment text available here.
Federal Rule of Evidence 408 Compromise and Offers to Compromise	"The proposed amendments to Rule 408 (Compromise and Offers to Compromise) resolve three longstanding conflicts in the courts about statements and offers made in settlement negotiations admitted as evidence of fault or used for impeachment purposes. First, the proposed amendments provide that statements of fault made during the course of settlement negotiations are not barred in a subsequent criminal case. Such statements may be critical evidence of guilt. Although statements of fault are admissible in subsequent criminal litigation, an actual settlement is not admissible to prove the validity or amount of the underlying claim. Second, the proposed amendments prohibit the use of statements made during settlement negotiations when offered to impeach a witness through a prior inconsistent statement or through contradiction. Third, the proposed amendments bar a party from introducing its own statements and offers of compromise made during settlement negotiations." (Not bulleted in original) Amendment text available here.
Federal Rule of Evidence 606(b) Competency of Juror as Witness: Inquiry Into Validity of Verdict or Indictment	"Rule 606 (Competency of Juror as Witness) would be amended to clarify that juror testimony may be received only for very limited purposes, including to prove that the verdict reported was the result of a clerical mistake. The proposed amendment does not prevent the court from polling the jurors and taking steps to remedy any error that seems obvious when the jury is polled." Amendment text available here.
Federal Rule of Evidence 609 Impeachment by Evidence of Conviction of Crime	"The proposed amendment to Rule 609 (Impeachment by Evidence of Conviction of Crime) resolves a conflict among the courts about whether a particular conviction involves dishonesty or false statement that can automatically be used to impeach the witness. The proposed amendment permits automatic impeachment only when an element of the crime requires proof of deceit or if the underlying act of deceit readily can be determined from such information as the charging instrument." Amendment text available here.

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2. Continuing Series: Reviewing The 2006 Evidence Amendments

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3. Text Of 2006 Amendments

The text of the four amendments transmitted originally by the U.S. Judicial Conference to the U.S. Supreme Court and in April 2006 to Congress, concerning FRE 404(a) (Character Evidence Generally), FRE 408 (Compromise and Offers to Compromise), FRE 606(b) (Competency of Juror as Witness: Inquiry Into Validity of Verdict or Indictment), FRE 609 (Impeachment by Evidence of Conviction of Crime), is noted below:

Amendment Language strike out indicates deletion; underline indicates insertion
Rule 404 Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes (a) Character evidence generally. --Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused.--Evidence In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim.--Evidence In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of witness.--Evidence of the character of a witness, as provided in rules 607, 608, and 609.
Rule 408 Compromise and Offers to Compromise (a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise athe claim, and which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. (b) Permitted uses. This rule also does not require exclusion when if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include another purpose, such as proving a witness's bias or prejudice; negating of a witness, negativing a contention of undue delay, or; and proving an effort to obstruct a criminal investigation or prosecution.
Rule 606 Competency of Juror as Witness (b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith,. except that But a juror may testify on the question about (1) whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. Nor may a A juror's affidavit or evidence of any statement by the juror concerning may not be received on a matter about which the juror would be precluded from testifying be received for these purposes.
Rule 609 Impeachment by Evidence of Conviction of Crime (a) General rule. For the purpose of attacking the credibility character for truthfulness of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime that readily can be determined to have been a crime of dishonesty or false statement shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

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4. Amendment Action Timeline

The process for proposing, considering and approving a FRE amendment can take a few years. The four 2006 amendments were transmitted to the Congress on April 12, 2006 by the U.S. Supreme Court. Congress had the authority to accept, modify or reject the proposed amendments by December 1, 2006. The amendments became effective upon Congress taking no action on the transmitted amendments. Relevant reports can be accessed by linking on the applicable date below. Some of the recent amendment action on FRE 404(a) (Character Evidence Generally), FRE 408 (Compromise and Offers to Compromise), FRE 606(b) (Competency of Juror as Witness: Inquiry Into Validity of Verdict or Indictment), FRE 609 (Impeachment by Evidence of Conviction of Crime), includes:

Date	Action
Oct. 18, 2002	Advisory Committee on Evidence Rules agrees to continue consideration of a possible amendment to FRE 106, 404(a), 408,
Dec. 5, 2002	Advisory Committee on Evidence Rules votes to give further consideration to amendment to FRE 106, 404(a), 408, 410, 806, 901
April 25, 2003	Advisory Committee on Evidence Rules approves proposed amendments to FRE 404(a), 408, 606(b), as part of a possible package of amendments
May 5, 2003	Advisory Committee on Evidence Rules votes to give further consideration to amendment to FRE 404(a), 408, 410, 606(b)
Nov. 13, 2003	Advisory Committee on Evidence Rules considers working draft amendment and advisory committee note for FRE 404(a), 408, 410, 606(b), which will be considered at its next meeting
Dec. 1, 2003	Advisory Committee on Evidence Rules gives tentative approval to language to amendment FRE 404(a), 408, 410, 606(b) and 609
April 29 & 30, 2004	Advisory Committee approves proposed amendments to FRE Rule 404(a), 408, 606(b), and 609(a)(2)
May 15, 2004	Advisory Committee on Rules of Evidence recommends proposed amendments to FRE 404(a), 408, 606(b) and 609 be released for public comment and includes draft language and advisory committee notes
August 2004	Proposed amendments submitted for public comment: August 2004 Preliminary Draft of Proposed Amendments to the Federal Rules of Practice and Procedure, Submitted For Public Comment (For Public Comment) (see Federal Rules of Evidence Amendments at pages 5 to 7 of this pdf document)
Feb. 15, 2005	Public comment period on pending amendments ends; Several comments were received.
April 28, 2005	Advisory Committee on Evidence Rules considers and adopts proposed amendments with some modification
May 16, 2005	Report of the Advisory Committee on Evidence Rules (including summary and draft Advisory Committee Notes)
June 15-16, 2005	Committee on Rules of Practice and Procedure ("Standing Committee") approves the proposed amendments to FRE, along with other amendments to other rules of evidence, and civil and criminal procedure.
Sept. 20, 2005	Judicial Conference approves the amendment at its annual meeting and transmitted the amendment to the U.S. Supreme Court, along with other rule changes
April 12, 2006	The U.S. Supreme Court transmits the amendments to FRE 404(a), 408, 606(b) and 609 to Congress. (By law the Supreme Court acts on the recommendation by May 1. See 28 U.S.C. § 2074(a) ("The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule … is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law.").
Dec. 1, 2006	Congress had the final opportunity to accept, modify or reject the proposed amendment by December 1, 2006. Because Congress did not take any action, the amendments transmitted by the Supreme Court became effective on December 1, 2006. See 28 U.S.C. § 2074(a).

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5. Background Information On Adopted Amendments

Key reports by the judicial policy bodies involved in considering and adopting the pending amendments are available at the following links:

Report of the Advisory Committee on Evidence Rules concerning the proposed amendments submitted to the U.S. Supreme Court in November 2005:

• Transmittal Memorandum
• Amendments Incorporated into Clean Version of the Rules
• Excerpt of the Judicial Conference Report
• Excerpt of the Report of the Advisory Committee on Evidence Rules

The Advisory Committee on Rules May 2005 Report to the Judicial Conference of the United States for Amendments to the Federal Rules of Evidence that would take effect in December 2006 is available [Click here for HTML Version of Report]. The Report contains the proposed amendment and advisory committee notes for each rule.

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B. 2005 Amendments

In 2005, the Supreme Court did not transmit any amendments to Congress for the Federal Rules of Evidence under the Rules Enabling Act.

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C. 2004 Amendments

In 2004, the U.S. Supreme Court did not transmit any amendments to Congress for the Federal Rules of Evidence under the Rules Enabling Act.

The Supreme Court declined an amendment recommended by the U.S. Judicial Conference to FRE 804(b)(3) (recommending that the government show "particularized guarantees of trustworthiness" when a declaration against penal interest is offered against an accused."), after the decision in Crawford v. Washington, 541 U.S. 36 (2004).

After the Supreme Court sent back the proposed amendment to FRE 804(b)(3), the Advisory Committee on Rules of Evidence decided to defer any consideration of an amendment to a hearsay exception until the implications of Crawford are understood.

Amendment Action Timeline
Proposed Amendment to FRE 804(b)(3) For 2004

The Supreme Court ultimately declined to transmit the amendment FRE 804(b)(3) (Hearsay Exception - Statement Against Interest) recommended by the Judicial Conference. The process for considering the amendments is indicated below along with reports where available:

Date	Action
Dec. 1, 2001	Advisory Committee on Evidence Rules proposes amendment to FRE 804(b)(3), which was released for public comment
April 19, 2002	Advisory Committee on Evidence Rules agrees to revise proposed amendment to FRE 804(b)(3) for release for public comment
May 1, 2002	Advisory Committee on Evidence Rules unanimously agrees to revise a proposed amendment to FRE 804(b)(3) and unanimously recommends that the revised proposal be released for a new round of public comment
May 1, 2002	Report of the Advisory Committee on Evidence Rules to the Committee On Rules Of Practice and Procedure of the Judicial Conference of the United States recommending revisions to FRE 804(b)(3) and a new round of public comment
August 2002	Preliminary Draft of Proposed Amendments to the Federal Rules of Practice and Procedure
Oct. 18, 2002	A short report was given on the status of pending amendments: In April 2002, the proposed amendment to Rule 804(b)(3) was substantially revised and then submitted to the Standing Committee for approval and release for a new round of public comment, which was adopted unanimously; while no public comments had been received, a public hearing was set for January 27, 2003
Feb. 15, 2003	Public comment period ends
April 25, 2003	Advisory Committee on Evidence Rules holds a public hearing on the proposed amendment to FRE 804(b)(3) and hears from two witnesses: Professor Richard Friedman and David Romine; Committee unanimously approves proposed amendment to FRE 804(b)(3), after adopting two modifications
May 5, 2003	Advisory Committee on Evidence Rules approves proposed amendment to FRE 804(b)(3), unanimously recommending that the Standing Committee approve and forward it to the Judicial Conference; a summary of public comments was included with the report
May 5, 2003	Report of the Advisory Committee on Evidence Rules to Standing Committee on Rules of Practice and Procedure (from Honorable Jerry E. Smith, Chair Advisory Committee on Evidence Rules, to Honorable Anthony J. Scirica, Chair Standing Committee on Rules of Practice and Procedure
Sept. 2003	Report of the Judicial Conference Committee on Rules of Practice and Procedure summarizing proposed amendments
Sept. 2003	Judicial Conference approves the amendment at its annual meeting and transmits the amendment to the U.S. Supreme Court; Excerpt From The Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States; Redline version of proposed FRE 804(b)(3) amendment
April 29 & 30, 2004	After the Supreme Court sent back the proposed amendment to FRE 804(b)(3) following the decision in Crawford v. Washington, 541 U.S. 36 (2004), the Advisory Committee on Evidence Rules decided to defer any consideration of an amendment to a hearsay exception until the implications of Crawford are more fully understood

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D. 2003 Amendments

In 2003, the U.S. Supreme Court transmitted an amendment to FRE 608(b) (clarifying that prohibition on extrinsic evidence applies when the basis for the evidence is to attack or support the witness’ character for truthfulness) which was recommended by the Judicial Conference. When Congress did not act on the transmittal by the Supreme Court, the amendment became law.

Amendment Action Timeline Proposed Amendment to FRE 608(b) For 2003

The process for considering the amendment is indicated below along with reports where available:

Date	Action
April 19, 2001	Advisory Committee on Evidence Rules unanimously recommends to the Standing Committee that the proposed amendment to FRE 608(b) and the accompanying Committee Note be issued for public comment (including Proposed Amendment to Evidence Rule 608(b) and Proposed Committee Note)
May 1, 2001	Advisory Committee on Evidence Rules unanimously approves proposed amendment to FRE 608(b) and the proposed Committee Note, and recommended that the proposed amendment be approved for release for public comment (including Proposed Amendment to Evidence Rule 608(b) and Proposed Committee Note)
Dec. 1, 2001	Advisory Committee on Evidence Rules proposed amendments to FRE 608(b)
April 19, 2002	Advisory Committee on Evidence Rules unanimously recommends the Standing Committee approve a proposed amendment to FRE 608(b) and the accompanying Committee Note, and forward them to the Judicial Conference
May 1, 2002	Report of the Advisory Committee on Evidence Rules concerning proposed amendment to FRE 608(b) (to Honorable Anthony J. Scirica, Chair Standing Committee on Rules of Practice and Procedure, from Honorable Milton I. Shadur, Chair Advisory Committee on Evidence Rules (Revised to account for action taken by Standing Committee at its June 10-11 meeting)
May 1, 2002	Advisory Committee on Evidence Rules unanimously approves amendment to FRE 608(b) and recommends that the Standing Committee approve and it to the Judicial Conference
August 2002	Report Of The Judicial Conference Committee On Rules Of Practice And Procedure concerning proposed amendments including to FRE 608(b)
October 18, 2002	A short report was given on the status of pending amendments: In June 2002, the Standing Committee approved the amendment to FRE 608(b) and referred it to the Judicial Conference, which then approved the amendment and transmitted it to the U.S. Supreme Court
November 18, 2002	Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States concerning amendment to FRE 608(b); Summary of the proposed amendments
March 27, 2003	U.S. Supreme Court transmits amendment to FRE 608(b) to the U.S. Congress. See 538 U.S. 1097 (2003); 149 Cong. Rec. H2467 (2003); H. Doc. 108-57. By law, the Supreme Court acts on the recommendation by May 1, 2003. See 28 U.S.C. § 2074(a) ("The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law.").
Dec. 1, 2003	Congress had the final opportunity to accept, modify or reject the proposed amendment by December 1, 2006. Since Congress did not act, the rule transmitted by the Supreme Court was adopted. See 28 U.S.C. § 2074(a).

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E. Links To Historical Documents
On Past Amendments To The FRE

Advisory Committee On Evidence Rules Reports since 1963 from the Administrative Office of the United States Courts.

Summary of Past Judicial Advisory Committee Action on Individual Federal Rules of Evidence

Prior Prior Minutes of the Advisory Committee on Evidence Rules

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III. Advisory Committee On Evidence Rules

The Advisory Committee On Evidence Rules considers, proposes and rejects many of the amendments to the Federal Rules of Evidence. This section contains information concerning the committee’s activities on various evidence rules during the past few years.

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A. Federal Evidence Review's Docket of Advisory Committee Actions On Past Amendments

The Docket summarizes action of the Advisory Committee On Evidence Rules concerning FRE amendments proposed, accepted and rejected over the years. A pdf version of the applicable Report or Minutes are available by clicking on the applicable date. The rules under consideration are noted in the Action Reported column below.

Document	Action Reported
May 16, 2005 Advisory Committee Report to Standing Committee	Report of Advisory Committee on Evidence Rules approving and summarizing proposed amendments to FRE 404(a), 408, 606(b) and 609 The Committee's Subcommittee on Privileges reported on its long-term project to "survey" federal common law of privileges, including its consideration of "whether a proposed statute can be drafted to permit parties under certain circumstances to produce documents in discovery without risking subject matter waiver
April 28, 2005 Advisory Committee Minutes,	Advisory Committee on Evidence Rules Minutes approving FRE 404(a), 408, 606(b) and 609 Professor Ken Broun reported to the committee on the status of the survey of privileges
January 15, 2005 Advisory Committee Minutes	Advisory Committee on Evidence Rules unanimously agreed no action was needed to FRE 1101 in light of Booker and Blakely sentencing issues and directed a report on developments involving Blakely and Booker The Committee unanimously agreed to take no action on a proposal by the Center for Regulatory Effectiveness to amend FRE 803(8) "to require the trial court to consider whether the public report comports with information standards promulgated by Congress" and "to exclude public reports if the government investigation was incomplete, speculative, or biased" The Committee unanimously agreed it was premature to recommend amendments to the hearsay rules based on Crawford v. Washington, 541 U.S. 36 (2004) The Evidence and Civil Rules Committees will jointly consider integrating civil rules that operate as rules of evidence, such as Fed. R. Civ. P. 32 and FRE 804(b)(1) Congress required privacy rules in the E-Government Act which may mandate rules protecting private information found in court filings; the Advisory Committees on Appellate, Bankruptcy, Civil and Criminal Rules are considering appropriate standards; because this issue involves filing of documents and not admissibility of evidence, "they do not raise any question that would be addressed in the Evidence Rules  The Department of Justice representative suggested consideration of an amendment to FRE 611(a) to protect the privacy interests of witnesses who testify in a federal court; The Reporter will research the issue "to assist the Committee in determining whether 1) existing case law protects the privacy of witnesses, and 2) an amendment to protect such interests is necessary" The Committee discussed a possible amendment to establish a new FRE 1104 to clarify the FRE apply to evidence in electronic form
May 15, 2004 Advisory Committee on Rules	Advisory Committee rejects proposed amendments to FRE 410, 706, 803(3), 803(8), and 804(b)(3) Committee recommends proposed amendments to FRE 404(a), 408, 606(b) and 609 be released for public comment and includes draft language and advisory committee notes Subcommittee on Privileges is preparing a long-term project to "survey" the federal common law of privileges Committee is considering integrating civil rules that operate as rules of evidence, such as Fed. R. Civ. P. 32 and 44 to "make it easier for lawyers to find rules of evidence in one body of law" The Civil Rules Committee expressed an interest in working with the Evidence Rules Committee on a rule concerning inadvertent disclosure of privileged material
April 29 & 30, 2004 Committee Minutes	Committee unanimously approved proposed amendments to FRE Rule 404(a) and 609(a)(2) and recommended to the Standing Committee that the proposals be released for public comment along with the amendments approved below motion was made and seconded to approve the proposed amendment to Evidence Committee approved by a vote of 6 to 1 proposed amendment to FRE 606(b) Committee approved by a vote of 5 to 2 proposed amendment to FRE 408 Committee unanimously agreed to defer any amendment to FRE 410 Committee unanimously agreed to take no further action on an amendment to FRE 706 Committee unanimously agreed any amendment to FRE 803(3) was inappropriate at this time based on Crawford v. Washington, 541 U.S. 36 (2004)and the case law would continue to be monitored Committee unanimously agreed to defer any amendment to FRE 803(8) After the Supreme Court sent back the proposed amendment to FRE 804(b)(3) following the Crawford decision, the Committee decided to defer any consideration of an amendment to a hearsay exception until the implications of Crawford are understood Committee reviewed the privilege survey project Committee considered whether suggestions should be provided to the Civil Rules Committee about the restylization of Fed. R. Civ. P. 32 and 44 that bear on the admission of evidence Committee unanimously agreed that a joint project was appropriate with the Civil Rules Committee on a rule concerning inadvertent disclosure of privileged material and that an appropriate suggestion could be made to Congress instead of a proposed rule through the rulemaking process
December 1, 2003 Advisory Committee Report to Standing Committee	Advisory Committee rejected amendments to FRE 607, 613(b), 704(b), 801(d)(1)(B), 803(18), and 806 Committee gave tentative approval to language to amendment FRE 404(a), 408, 410, 606(b) and 609 Committee directed the Reporter to prepare memoranda to determine whether changes were necessary to FRE 706, 803(3), and 803(8) An update was provided concerning the Subcommittee on Privileges on a long-term project by Consultant to the Committee, Professor Ken Broun, to "survey" the federal common law of privileges; the survey of the psychotherapist-patient privilege is substantially completed, and work has commenced on the attorney-client privilege
November 13, 2003 Committee Minutes	Advisory Committee on Evidence Rules tentatively approved language amending FRE 404(a), 410, and considered a working draft to amend FRE 408, 606(b), and 609(a)(2) Committee agreed to consider at a future meeting proposals to amend FRE 706, 803(3), 803(8) Committee further agreed to end consideration of an amendment to FRE 607, 613(b), 704(b), 801(d)(1)(B), 803(18), 806 Professor Ken Broun reported to the committee on the status of the survey of privileges
May 5, 2003 Advisory Committee Report to Standing Committee	Advisory Committee approved proposed amendment to FRE 804(b)(3), unanimously recommending that the Standing Committee approve and forward it to the Judicial Conference; a summary of public comments was included with the report Committee rejected amendments to FRE 106, 404(a), 803(6) Committee votes to give further consideration to amendment to FRE 404(a), 408, 410, 606(b) Committee Reporter to prepare memoranda to determine whether changes were necessary to FRE 607, 609, 613(b), 704(b), 706, 801(d)(1)(B), 803(3), 803(5), 803(8), 803(18), 806, and 901 Subcommittee on Privileges is working on a long-term project to "survey" the federal common law of privileges Committee considered a proposal to amend the Civil Rules to permit more general use of de bene esse depositions (prepared as a substitute for trial testimony) and concluded it would create a conflict with the FRE
April 25, 2003 Committee Minutes	Committee held a public hearing on the proposed amendment to FRE 804(b)(3) Committee unanimously approved a modified amendment to FRE 804(b)(3) and referred it to the Standing Committee Committee agrees to consider possible amendments to FRE 404(a), 408, 410, 606(b) Committee unanimously agreed to end consideration of any amendment to FRE 106 and 803(6) With regard to the status of a survey on privileges, Professor Ken Broun provided a draft of the survey on the psychotherapist-patient privilege Committee considered a proposal to amend the Civil Rules to permit more general use of de bene esse depositions (prepared as a substitute for trial testimony) and concluded it would create a conflict with the FRE
December 5, 2002 Advisory Committee Report to Standing Committee	Advisory Committee votes to give further consideration to amend FRE 106, 404(a), 408, 410, 806, 901 Committee rejected amendments to FRE 106, 412, 803(6), 803(4), 804(a)(5), 804(b)(1), 807, 902(1), 1006 Committee Reporter to prepare memoranda to determine whether changes were necessary to FRE 606(b), 607, 609, 613(b), 704(b), 706, 801(d)(1)(B), 803(3), 803(4), 803(5), 803(6), 803(8), 803(18) Subcommittee on Privileges is working on a long-term project to "survey" the federal common law of privileges and chose the psychotherapist-patient privilege as an exemplar
October 18, 2002 Committee Minutes	Advisory Committee votes to give further consideration to amend FRE 106, 404(a), 408, 806, 901 Committee rejected amendments to FRE 106, 412, 803(4), 804(a)(5), 804(b)(1), 807, 902(1), 902(2), 902(6), 1006 Subcommittee on Privileges is working on a long-term project to "survey" the federal common law of privileges
May 1, 2002 Advisory Committee Report to Standing Committee	Advisory Committee unanimously approves amendment to FRE 608(b) and recommends that the Standing Committee approve and it to the Judicial Conference Committee unanimously agreed to revise a proposed amendment to FRE 804(b)(3) and unanimously recommends that the revised proposal be released for a new round of public comment Subcommittee on Privileges prepared two draft rules for a privilege for confidential communications to physicians and mental health providers and a privilege for confidential communications to clerics; Committee tentatively decided that any privilege for communications to clerics should be developed by common law Committee rejected any long-term project to consider amendments to FRE 104, 401, 402, 403, 404(b), 405, 413-15, 610, 611, 801(c) Committee voted to consider tentatively whether amendments were necessary to FRE 106, 404(a), 408, 412, 606(b), 607, 609, 613(b), 704(b), 706, 801(d)(1)(B), 803(3), 803(4), 803(5), 803(6), 803(8), 803(18)

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B. Background On The Rule-Making Process

Information about the rule-making process is not widely known. Some background information concerning this important process is available at the following links:

A summary of the rulemaking process. (On the Rule Making Process And On Submitting Comments to the Advisory Committee (summary from the Administrative Office of the United States Courts))

The Rules Enabling Act which governs the procedures for the adoption of rules in the federal courts.

The Procedures For The Conduct Of Business By The Judicial Conference Committees On Rules Of Practice And Procedure (summary from the Administrative Office of the United States Courts).

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C. Report by the Advisory Committee on Rules May 2005

The Advisory Committee on Rules Report to the Judicial Conference of the United States for Amendments to the Federal Rules of Evidence that would take effect in December 2006 is available. The Report contains the proposed amendment and advisory committee notes for each rule.

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IV. Other FRE Reports Of Interest

A. Other Significant Reports

Case Law Divergence from the Federal Rules of Evidence from the Federal Judicial Center (2000) [PDF] .

Advisory Committee Notes to the Federal Rules of Evidence That May Require Clarification from the Federal Judicial Center (1998) [PDF]

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