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Fed. R. Evid. 502
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Summary   

Congress enacted FRE 502  to provide a more workable framework to evaluate when waiver occurs in the event of inadvertent production than that set out by FRCP 26(b)(5) in 2006.


Section 502(a) discusses the scope of waiver and restricts any waiver to the disclosed communication (instead of other undisclosed communications) unless the waiver is intentional, the same subject matter is at issue, and they should be considered together.  


Section 502(b) creates an analysis for waiver based on inadvertent disclosure -- the disclosure must be inadvertent, the producing party took reasonable steps to prevent disclosure, and followed the process in 26(b)(5)(B) to recover the privileged material (which means asking for it back, and/or having the court make a determination).  This section essentially eliminates sections FRCP 26(b)(5)(A)(i) and 26(b)(5)(A)(ii).


Section 502(c) maintains federal law as the floor for waiver in federal cases. Under that section, if a party inadvertently produces privileged material in a state case, it's not a waiver in federal court if 1) it wasn't a waiver in the state where you disclosed it, and 2) federal law would not allow a waiver under the same circumstances.  


Section 502(d) allows the parties to have the judge issue an order that inadvertent production is not a waiver for the case -- meaning, by virtue of FRE 502(c), that it is not a waiver for any other federal or state case.


Section 502(e) contrasts with 502(d) as to the power of agreement between the parties and not with the court:  An agreement under section (e) between the parties that disclosure does not lead to waiver is only binding on the parties and does not have the same effect as a court order under section 502(d).


Section 502(f) says that the provisions of FRE 502 apply to both federal and state proceedings, even where state law applies to the merits.  


Counsel addressing issues of waiver and inadvertent disclosure should also carefully review the committee notes on the intent of the rule to always lean towards maintaining the privilege.  


Full text
Committee notes

Attorney-Client Privilege and Work Product; Limitations on Waiver


The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.


(a) Disclosure Made In A Federal Proceeding Or To A Federal Office Or Agency; Scope Of A Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

(c) Disclosure Made In A State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred

(d) Controlling Effect Of A Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

(e) Controlling Effect Of A Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Controlling Effect Of This Rule. Notwithstanding Rules 101 And 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.

(g) Definitions. In This rule:
(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.


Effective December 1, 2011