The increasing use of electronic discovery in litigation and the attendant high risk of inadvertent disclosures has led the New Jersey Supreme Court to adopt amendments to New Jersey’s Evidence Rule 530 (Waiver of Privilege by Contract or Previous Disclosure). The Court also adopted amendments to N.J.R.E. 608 (Evidence of a Witness’s Character for Truthfulness or Untruthfulness), and has ordered the restyling of 46 other Rules of Evidence. These amendments are effective July 1, 2020.

Background

The amendments are based on the 2017−2019 report of the Supreme Court Committee on the Rules of Evidence and were proposed by the August 5, 2019, notice to the bar. They were presented for discussion at a Judicial Conference on September 4, 2019, pursuant to N.J.S.A. 2A:84A-34.

N.J.R.E. 530

N.J.R.E. 530 was amended because of the growing use of electronic discovery in litigation and the resultant increased risk of inadvertent disclosures. The amendments to N.J.R.E. 530 include a new paragraph (c), which contains provisions that apply to disclosure of communications or information covered by the attorney-client privilege or work-product protection.

Specifically, the new paragraph (c) addresses disclosures made during state proceedings or to state agencies or officers; disclosures made in another forum’s proceeding (state or federal); inadvertent disclosures; and the controlling effect of a court’s order or party agreement regarding disclosure. Under the amended Rule, a court order regarding disclosure can have far-reaching ramifications. If a court order states that the work-product protection or attorney-client privilege is not waived by disclosure connected with the litigation pending before it, then the disclosure does not constitute a waiver in any other federal or state proceeding. Conversely, an agreement regarding the effect of disclosure in a state proceeding is only binding on the parties to the agreement, unless it is incorporated into a court order.

A potential issue under the amended Rule is whether intentional partial waivers still will be permitted. NJSBA Trustees have reported some confusion among NJSBA members about whether such waivers will remain allowable under the new Rule, and requested a comment to the Rule clarifying this issue.

N.J.R.E. 608

N.J.R.E. 608 was amended in response to the Supreme Court’s referral to the Committee on the Rules of Evidence in State v. Scott, 229 N.J. 469, 494 (2017). In only criminal cases and under limited circumstances, N.J.R.E. 608 now allows inquiry into specific-act evidence on cross-examination when probative of a witness’s character for truthfulness. See N.J.R.E. 608(d). The amendments constitute an expansion from the current rule, where specific-act evidence is permissible in two instances only: (1) under N.J.R.E. 609 with respect to prior criminal convictions and (2) when involving false accusations of a crime similar to that with which the defendant is charged.

The amended version of N.J.R.E. 608 also adds a subsection addressing when a witness in a criminal case makes prior false statements tending to exonerate the defendant. See N.J.R.E. 608(b)(2). The Rule’s prior version only addressed a witness’s prior false accusations of crimes similar to the crime with which the defendant is charged. See N.J.R.E. 608(b)(1).

Other Amendments

The amendments restyling 46 other New Jersey Rules of Evidence are intended to make the Rules easier to understand without changing their substantive meaning. The amendments remove ambiguous words, reduce the use of redundant intensifiers, and select consistent punctuation and terminology, while preserving familiar phrases that have been interpreted in case law frequently. These restyling amendments are the result of a seven-year project that began after the Federal Rules of Evidence were restyled in 2011. The 46 New Jersey Rules of Evidence restyled by the new amendments are as follows: N.J.R.E. 101; 102; 104; 105; 106; 201; 202; 301; 302; 303; 402; 404; 405; 408; 409; 410; 601; 602; 604; 605; 607; 609; 610; 611; 612; 613; 614; 701; 703; 705; 801; 803; 804; 805; 806; 807; 808; 901; 902; 903; 1001; 1003; 1005; 1006; 1007; 1008.