The amendments to Rule 530 and Rule 608 were the result of years of consideration and align New Jersey more closely with federal rules of evidence.

The growing use of electronic discovery in litigation and the increased risk of inadvertent disclosures prompted New Jersey to amend its evidence rule (Rule 530: Waiver of Privilege by Contract or Previous Disclosure) to align more closely with the federal evidence standard. New Jersey also amended its character evidence rule (Rule 608: Evidence of a Witness' Character for Truthfulness or Untruthfulness). The amendments are effective as of July 1, 2020.

New Jersey Evidence Rule 530: Waiver of Privilege by Contract or Previous Disclosure

Rule 530 now includes a new paragraph (c) that addresses disclosure of communications or information covered by the attorney-client privilege or work-product protection. New paragraph (c) addresses disclosures made during: (1) state proceedings or to state agencies or offices; (2) inadvertent disclosures; (3) disclosures made in another forum's proceeding (state or federal); (4) the controlling effect of a court's order; and (5) the controlling effects of party agreements.

For intentional disclosures in a state proceeding or to a state office or agency, the amendment provides that the waiver of the attorney-client or work-product doctrine shall also extend to undisclosed communications in a state proceeding if it concerns the same subject matter as the intentional disclosure such that they “ought in fairness to be considered together.” N.J.R.E. 530(c)(1)(A)-(C).

For inadvertent disclosures in the same proceedings, the amendment provides that such disclosures do not constitute a waiver of the privilege where the holder of that privilege took reasonable steps to prevent its disclosure and promptly took action to rectify the error. N.J.R.E. 530(c)(2)(A)-(C).

The amendments to Rule 530 also extend these principles to such disclosures made in other forums and those sought to be introduced in New Jersey courts. N.J.R.E. 530(3).

The amendments also create far-reaching implications for court orders concerning disclosures before New Jersey courts. New Jersey courts may now order that where the privilege or protection is not waived by disclosure connected with the litigation pending, the disclosure also does not constitute a waiver in any other federal or state court. N.J.R.E. 530(c)(4).

Rule 530 now mirrors Federal Rule of Evidence 502 by providing a safe harbor for clients and attorneys who inadvertently disclose privileged information. New Jersey courts may now consider ample federal case law interpreting the inadvertent disclosure rule. Specifically, in determining whether the privilege was waived, federal courts have considered the reasonableness of the precautions taken, the time taken to rectify the error, the scope of the inadvertent disclosure, and the overriding considerations of fairness. Thus, although New Jersey courts now recognize this safe harbor, the protection is far from absolute because the facts underlying the disclosure will be evaluated in a similar manner to the analysis under federal case law.

Rule 530(c)(4) may prove particularly important to litigants employing confidentiality orders to limit the costs of privilege review, specifically in cases involving electronic discovery. Rule 530(c)(4) tracks Federal Rule of Evidence 502(d). Federal courts throughout the country remain divided on the issue of whether a Rule 502(d) confidentiality order entered in one case is enforceable in other proceedings. Thus, the utility of such confidentiality orders in New Jersey courts may be severely limited if it is determined that they provide no protection outside the particular matter in which the order is entered.

New Jersey Evidence Rule 608: Witness' Character for Truthfulness or Untruthfulness

Rule 608 was amended to expand the circumstances under which a court may permit inquiry into specific-act evidence to attack the credibility of a witness. Under the former rule, specific-act evidence was only permitted in two circumstances: (1) where the witness was previously convicted of a crime, as set forth in N.J.R.E. 609, or (2) where the witness made a prior false accusation of a crime similar to that with which the defendant is charged.

Under the amendment, specific-act evidence will be permitted on cross-examination in criminal cases where it is generally probative of the witness's character for truthfulness, provided the proponent of the evidence shows “a reasonable factual basis exists that the specific instance of conduct occurred” and “the specific instance of conduct has probative value in assessing the witness' character for truthfulness.” If the specific-act evidence is more than 10 years old, the proponent of the evidence must also show “that the probative value of the specific instance of conduct in assessing the witness' character for truthfulness outweighs any prejudicial effect.”

The amendments significantly broaden the scope of pre-trial discovery by exposing parties and witnesses to wide-ranging inquiries regarding past dishonest conduct. Litigants should be prepared to engage in additional discovery to identify and obtain information to substantiate or refute specific-acts evidence. The amendments also expose witnesses to potential embarrassment at trial for their past dishonest conduct, however minor or attenuated to the relevant dispute.

Litigants should be prepared to thoroughly vet their potential witnesses and have a plan to rehabilitate the witnesses on redirect if necessary. Conversely, litigants should thoroughly vet opposing witnesses and plan to point out any past dishonest conduct to attack the witnesses' credibility.

The amendments to Rule 530 and Rule 608 were the result of years of consideration and align New Jersey more closely with federal rules of evidence.

Note: Duane Morris partner Sheila Raftery Wiggins is an officer of the Trial Attorneys of New Jersey, which is one of the New Jersey bar associations that submitted position statements regarding these amendments.

For Further Information

If you have any questions about this Alert, please contact Sheila Raftery Wiggins, Sarah Fehm Stewart, or Matthew Caminiti, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.

Originally published by Duane Morris, July 2020

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