The Advisory Committee on Civil Practice, a standing advisory committee established by the Chief Administrative Judge of the Courts, annually recommends to the chief administrative judge legislative proposals in the areas of civil procedure that may be incorporated in the chief administrative judge's legislative program.¹ These proposals generally involve amendments to the Civil Practice Law and Rules (CPLR) which address matters needing revision or clarification. In recent years, the committee has increasingly addressed New York's rules of evidence by recommending amendments to Article 45 of the CPLR, titled “Evidence.”

The committee's 2015 Report continues this trend as it proposes four changes to New York's rules of evidence.² As these changes are significant, they will be the subject of this column. The goal is to alert the bench and bar about them with the expectation that constructive comments will be given to the Legislature concerning them.

Waiver of Privilege

The committee proposes the addition of a new §4550 to the CPLR which addresses the issue of waiver of the attorney-client privilege (CPLR §4502), and work product protection (CPLR §3101[c],[d][2]) when otherwise protected communications or information are disclosed. 2015 Report at pp. 20-21. Subdivision (a) addresses the issue of “subject-matter waiver,” i.e., whether the disclosure of a protected communication or document waives the privilege/protection with respect to other communications or documents which relate to the same subject matter; and subdivision (b) deals with the topic of “inadvertent disclosure,” i.e., disclosure by mistake.