Bill Text: NY S07482 | 2023-2024 | General Assembly | Introduced

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Bill Title: Relates to waiver of privilege; provides for the scope of a waiver, inadvertent disclosure, and the effects of a court order and party agreement on waivers of privilege or protection.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-01-03 - REFERRED TO JUDICIARY [S07482 Detail]

Download: New_York-2023-S07482-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          7482

                               2023-2024 Regular Sessions

                    IN SENATE

                                      May 31, 2023
                                       ___________

        Introduced  by  Sen.  RYAN  --  read twice and ordered printed, and when
          printed to be committed to the Committee on Judiciary

        AN ACT to amend the civil practice law and rules, in relation to  waiver
          of privilege

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The civil practice law and rules is amended by adding a new
     2  section 4550 to read as follows:
     3    § 4550. Waiver of privilege.  (a)  Scope  of  waiver.  Where  material
     4  protected  by  subdivision  (c)  and paragraph two of subdivision (d) of
     5  section thirty-one hundred one of this chapter  or  that  is  privileged
     6  under this article is disclosed in connection with any action or contem-
     7  plated  action  under this chapter, or to any administrative body of the
     8  state of New York or any of its subdivisions, and such disclosure waives
     9  such privilege or protection,  the  waiver  extends  to  an  undisclosed
    10  communication or information only if:
    11    1. the waiver is intentional;
    12    2. the disclosed and undisclosed communications or information concern
    13  the same subject matter; and
    14    3. they ought in fairness to be considered together.
    15    (b)  Inadvertent  disclosure. Disclosure that is not intended to waive
    16  the privilege shall not waive the privilege if:
    17    1. the disclosure is inadvertent;
    18    2. the holder of the privilege or protection took reasonable steps  to
    19  prevent disclosure; and
    20    3.  the  holder  promptly  took reasonable steps to rectify the error,
    21  including (if applicable) notifying the party receiving the material  of
    22  the claim of privilege and the basis for its assertion.
    23    (c)  Disclosure  not  governed by this chapter. When the disclosure is
    24  made in an action not governed by this chapter, and is not  the  subject

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11680-01-3
        S. 7482                             2

     1  of  an  order  concerning  waiver,  the disclosure does not operate as a
     2  waiver in an action governed by this chapter if the disclosure:
     3    1.  would  not be a waiver under this section if it had been made in a
     4  judicial action governed by this chapter; or
     5    2. is not a waiver under the applicable law of  where  the  disclosure
     6  occurred.
     7    (d) Controlling effect of a court order. In an action governed by this
     8  chapter,  a  court  may  order  that  the privilege or protection is not
     9  waived by disclosure connected with the litigation  pending  before  the
    10  court,  in  which event the disclosure is also not a waiver in any other
    11  action.
    12    (e) Controlling effect of a  party  agreement.  An  agreement  on  the
    13  effect  of  disclosure  in  an action subject to this chapter is binding
    14  only on the parties to the agreement, unless it is incorporated  into  a
    15  court order.
    16    (f) Nothing in this section shall affect or alter the law with respect
    17  to  waiver  of  any  privilege  not described in subdivision (a) of this
    18  section or waiver by means other than disclosure.
    19    § 2. This act shall take effect immediately.