Domestic Diversions

New Rule 502: Inadvertent disclosure of attorney-client privilege and work product materials

The Federal Rules of Evidence will see a new rule addressing the disclosure of attorney-client and work-product information. New Rule 502 helps in those case where there are tremendous efforts to review voluminous documents and where inadvertent disclosure often occur. There is no change in the substantive law of privileges.

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
1 The following provisions apply, in the circumstances set
2 out, to disclosure of a communication or information covered
3 by the attorney-client privilege or work-product protection.
4 (a) Disclosure made in a federal proceeding or to a
5 federal office or agency; scope of a waiver. — When the
6 disclosure is made in a federal proceeding or to a federal
7 office or agency and waives the attorney-client privilege or
8 work-product protection, the waiver extends to an
9 undisclosed communication or information in a federal or
10 state proceeding only if:
11 (1) the waiver is intentional;
12 (2) the disclosed and undisclosed communications
13 or information concern the same subject matter; and
14 (3) they ought in fairness to be considered
15 together.
16 (b) Inadvertent disclosure. — When made in a federal
17 proceeding or to a federal office or agency, the disclosure
18 does not operate as a waiver in a federal or state proceeding
19 if:
20 (1) the disclosure is inadvertent;
21 (2) the holder of the privilege or protection took
22 reasonable steps to prevent disclosure; and
23 (3) the holder promptly took reasonable steps to
24 rectify the error, including (if applicable) following Fed. R.
25 Civ. P. 26(b)(5)(B).
26 (c) Disclosure made in a state proceeding. — When
27 the disclosure is made in a state proceeding and is not the
28 subject of a state-court order concerning waiver, the
29 disclosure does not operate as a waiver in a federal
30 proceeding if the disclosure:
31 (1) would not be a waiver under this rule if it had
32 been made in a federal proceeding; or
33 (2) is not a waiver under the law of the state where
34 the disclosure occurred.
35 (d) Controlling effect of a court order. — A federal
36 court may order that the privilege or protection is not waived
37 by disclosure connected with the litigation pending before the
38 court – in which event the disclosure is also not a waiver in
39 any other federal or state proceeding.
40 (e) Controlling effect of a party agreement. — An
41 agreement on the effect of disclosure in a federal proceeding
42 is binding only on the parties to the agreement, unless it is
43 incorporated into a court order.
44 (f) Controlling effect of this rule. — Notwithstanding
45 Rules 101 and 1101, this rule applies to state proceedings and
46 to federal court-annexed and federal court-mandated
47 arbitration proceedings, in the circumstances set out in the
48 rule. And notwithstanding Rule 501, this rule applies even if
49 state law provides the rule of decision.
50 (g) Definitions. — In this rule:
51 (1) “attorney-client privilege” means the
52 protection that applicable law provides for confidential
53 attorney-client communications; and
54 (2) “work-product protection” means the
55 protection that applicable law provides for tangible material
56 (or its intangible equivalent) prepared in anticipation of
57 litigation or for trial.

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