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New Federal Rule of Evidence 502 on Inadvertent Privilege Waiver

By William F. Heinze

According to WilmerHale,

On September 19, 2008, Federal Rule of Evidence 502 became effective, as President Bush signed into law P.L. 110-322, 122 Stat 3537. For an analysis of Rule 502's provisions and some likely consequences, please see the WilmerHale Email Alert published on September 12, 2008.

According to Marcia Coyle writing for the The National Law Journal on September 16, 2008,

Under the new federal rule, disclosure of privileged materials will not be a waiver of the privilege if disclosure is inadvertent; the holder of the privilege or protection took reasonable steps to prevent disclosure; and the holder took reasonable steps to rectify the error.

The rule also addresses the problem of "subject-matter waiver" by providing that, when a party produces one privileged document, any resulting waiver of the privilege would not extend to other related documents, as long as there was no intentional and
misleading use of protected information.

Full post as published by I/P Updates on September 24, 2008 (boomark / email).