Oops, it Happened Again: Inadvertent Disclosure Under New Federal Rule of Evidence 502
| Publication year | 2010 |
| Pages | 0065 |
| Citation | Vol. 71 No. 1 Pg. 0065 |
By Wayne Morse, Jr.
New Federal Rule of Evidence 502 is worthwhile reading for courtroom lawyers because it changes the law regarding waiver of attorney-client privilege. Rule 502 has several subsections.
(a) defines the limited circumstances under which a party's intentional waiver of the attorney-client or work-product protections as to one document waives the protections afforded other documents and information concerning the same subject-matter;
(b) creates a "reasonableness" standard for identifying those instances when a party's inadvertent disclosure of a document waives the protections attached to that document;
(d) and (e) strongly counsel that litigators use court-approved confidentiality agreements to further avoid uncertainty regarding a waiver and its consequences and to ensure that whatever disclosures they make cannot be used by non-parties as evidence of waiver; and in an important federalism development
(f) provides that a federal court's determination of a party's non-waiver is binding upon a state proceeding.
Intentional Disclosure
In short, Rule 502 provides that a waiver of privilege exists with respect to a document if the party acted intentionally. Fed. R. Evid. 502(a). Most important, the inquiry into intent under Rule 502(a) concerns a party's intent to waive the privilege, not its intention to produce a particular document. If a party intentionally waives the privilege attaching to a document, the Rule does not create a broader waiver of all other documents and information on the same subject, unless the non-disclosed, privileged documents "ought in fairness to be considered" with the material that was turned over. This codification is a change in the presumption of waiver. Previously, lawyers and judges considered an intentional waiver as to a document a waiver as to all documents of that subject-matter. The result was often harsh, so judges tended to narrowly construe the subject-matter of the disclosed document.
The language of Rule 502(a) and the advisory committee notes unambiguously provide that Rule 502's presumption is against subject-matter waivers for even an intentional waiver. The notes offer that subject-matter waivers should occur only in "unusual situations," when fairness requires that the non-disclosed material be considered with the material already turned over. Rule 502 falls short of providing sufficient certainty and guidance on when "fairness" will require a subject-matter waiver. The advisory committee notes do not add much guidance, as they state only that "... a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation." Until more case law interpretation develops, it will be difficult for a party or its counsel to assess what documents a court might conclude "ought in fairness" to be considered waived with other documents.
Suppose a party intends to waive the attorney-client privilege that would otherwise protect a corporate internal investigation report. It is clear that, pursuant to Rule 502(a), production of...
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