Please note the following response. From: Haskel, Peter [mailto:peter.haskel@dallascityhall.com] Sent: Monday, May 04, 2015 12:31 PM To: Chuck Thompson; 'ediscovery@lists.imla.org' Subject: RE: [Ediscovery] Supreme Court Adopts Amendments to Rules of Civil Procedure Rules amendments still not a done deal: 1. Congress can amend or veto any rule changes at least before their effective date (12/1/15), and maybe even later. See 28 U.S.C. § 2074(a) (" . . . unless otherwise provided by law."). 1. Express congressional approval is required for any rule change "creating, abolishing, or modifying an evidentiary privilege" to have force or effect. 28 U.S.C. § 2074(b). However, I think this provision has largely been ignored since Congress rejected the original Fed. R. Evid. Ch. V proposed privileges back in about 1974. See Advisory Committee Notes on 1974 Enactment, Fed. R. Evid. 501. A good argument could have been made that absent congressional action Fed. R. Evid. 502 (or certain portions relating to claw-backs and non-waiver) should have "no force and effect. § 2074(b). Instead of full congressional action, Rule 502 purportedly became effective with an Addendum to Advisory Committee Notes titled "Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence." I think that provisions of the revised Fed. R. Civ. P. dealing with proportionality in discovery (R. 26(b)) might be characterized as creating a "privilege" to withhold information where the volume or other attribute of information is disproportionate to the nature of the case. It is not an absolute privilege, of course; one could still be deposed about a document that adverse party obtained from another source even if one were excused from having to produce it. Whether any such "privilege" would be "evidentiary" also is problematic. Pete Haskel Dallas Exec. Ass't City Att'y 214-670-3038 Voice Direct 214-670-0622 FAX peter.haskel@dallascityhall.com<mailto:peter.haskel@dallascityhall.com> CONFIDENTIALITY NOTICE: This communication is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If you are not the intended recipient of this information, you are notified that any use, dissemination, distribution, or copying of the communication is strictly prohibited, and requested to reply hereto or notify sender by other immediate means of the misdelivery. From: Ediscovery [mailto:ediscovery-bounces@lists.imla.org] On Behalf Of Chuck Thompson Sent: Monday, May 04, 2015 9:46 AM To: 'ediscovery@lists.imla.org' Subject: [Ediscovery] Supreme Court Adopts Amendments to Rules of Civil Procedure On April 29 the Supreme Court released amendments to the Rules of Civil Procedure. A link to the amendments is: http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf Charles W. Thompson, Jr. Executive Director and General Counsel International Municipal Lawyers Association, Inc. 7910 Woodmont Ave., Suite 1440 Bethesda, Maryland 20814 202-466-5424 x7110 Direct: 202-742-1016 Cell: 240-876-6790 Plan ahead: IMLA's Annual Seminar April 24-27, 2015 - Omni Shoreham, Washington D.C. IMLA's Annual Conference October 3-8, 2015 - The Rio, Las Vegas, NV ________________________________ Spam<https://antispam.roaringpenguin.com/canit/b.php?i=02OnQuUGX&m=d953cec5dea8&t=20150504&c=s> Phish/Fraud<https://antispam.roaringpenguin.com/canit/b.php?i=02OnQuUGX&m=d953cec5dea8&t=20150504&c=p> Not spam<https://antispam.roaringpenguin.com/canit/b.php?i=02OnQuUGX&m=d953cec5dea8&t=20150504&c=n> Forget previous vote<https://antispam.roaringpenguin.com/canit/b.php?i=02OnQuUGX&m=d953cec5dea8&t=20150504&c=f>