Make Room for New Rule 502 Federal Rules of Evidence

May 16, 2010

By: Craig D. Joyce

The Federal Rules of Evidence recently grew larger by one rule. New Rule 502, which applies in all proceedings commenced after September 19, 2008, addresses inadvertent waivers of the attorney-client privilege or attorney work product doctrine. New Rule 502 reaffirms and reinforces the attorney client privilege and the work product doctrine by clarifying how they are affected by, and withstand, inadvertent disclosure in discovery.

The Need for Uniformity

Prior to enactment of new Rule 502, litigants faced uncertainty in how courts would treat inadvertent disclosures of privileged communications or information protected by the work product doctrine. At one extreme, some courts held that even an inadvertent disclosure of a communication or information protected under the attorney-client privilege or as work product constitutes a waiver, without regard to protections taken to avoid such a disclosure. See generally, Hopson v. Mayor and City Council of Baltimore 232 F.R.D. 228 (D. Md. 2005). Most courts, however, found waiver only if the disclosing party acted carelessly in disclosing the communication or information and failed to request its return in a timely manner.

Cases such as Lois Sportswear USA, Inc. v. Levis Strauss & Co.104 F.R.D. 103, 105 (S.D.N.Y. 1985) and Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985) set out multi factor tests for determining whether inadvertent disclosure would be treated as a waiver. Courts articulated these factors (none of which alone is dispositive) to determine whether the inadvertent disclosure constitutes a waiver:

1.the reasonableness of precautions taken
2.the time taken to rectify the error
3.the scope of discovery
4.the extent of disclosure
5.the overriding issue of fairness
Congress enacted Rule 502 in 2008 to bring uniformity in the area of evidentiary privileges. Tests developed in one district or circuit provide only uncertain or non-binding precedent in other districts or circuits. Furthermore, case law developed on individual cases had not kept up with recent developments in expedited discovery and the wholesale use of electronic discovery in which large quantities of electronically stored communications are searched by key words and then produced wholesale in electronic format.

The Goal: Reducing Expense of Litigation

New Rule 502 was initially developed by and recommended by the Judicial Conference of the United States. The conference noted that the uncertainty in the law on waiver of privilege and the work product doctrine caused rising costs of discovery, especially discovery of electronic information. The Advisory Committee to the Judicial Conference noted that “in complex litigation the lawyers spend significant amounts of time and effort to preserve the privilege and work product. The reason is that if a protected document is produced, there is a risk that a court will find a subject matter waiver that will apply not only to the instant case and document but to other cases and documents as well.

Moreover, an enormous amount of expense is put into document production in order to protect against inadvertent disclosure of privileged information, because the producing party risks a ruling that even a mistake in disclosure can result in a subject matter waiver.”1 The Advisory Committee hoped that a rule preventing courts from finding a broader subject matter waiver as a result of an inadvertent disclosure would make the discovery process much less expensive.

Subsection (a) — Intentional Selective Waiver

Rule 502(a) addresses intentional selective waivers. Prior to enactment of 502(a), litigants faced uncertainty whether an intentional selective waiver of one document or communication might be extended to other documents for information on which the party does not intend to waive the privilege. Under 502(a), when the disclosure is made in a federal proceeding or to a federal office or agency, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if the waiver is intentional, the disclosed and undisclosed communications or information concern the same subject matter and they ought in fairness to be considered together.

Subsection (b)—Inadvertent Disclosures

Rule 502(b) addresses inadvertent disclosures. When made in the course of a federal proceeding or to a federal office or agency, an inadvertent disclosure does not operate as a waiver of the attorney-client privilege or work product protection if:

1.the disclosure is inadvertent
2.(2) the holder of the privilege or protection took reasonable steps to prevent disclosure
3.and (3) the holder promptly took reasonable steps to rectify the error, including, if applicable, following the procedure set forth in Fed. R. Civ. P. 26(b)(5)(B), which requires that a party making a claim that information produced in discovery is subject to a claim of privilege or protection as trial preparation material notify any party that received the information of the claim and the basis for the claim.
Subsection (c)—Disclosures in State Proceedings

Rule 502(c) addresses disclosures made in state proceedings. If the inadvertent disclosure is made in a state proceeding and is not otherwise the subject of a state court order covering waiver, the disclosure does not operate as a waiver in federal proceedings if (1) the disclosure would not be a waiver if it had been made in a federal proceeding or (2) the disclosure is not a waiver under the law of the state where the disclosure occurred.

1:Letter to Honorable Patrick J. Leahy Chairman Committee on the Judiciary, United States Senate and Honorable Arlen Specter, Ranking Member, Committee on the Judiciary, United States Senate dated September 26, 2007 from Lee H. Rosenthal, Chair, Committee on Rules of Practice and Procedure, Judicial Conference of the United States.


This Article is published for general information, not to provide specific legal advice.  The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved. 

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Comments or inquiries may be directed to:
Craig D. Joyce.