Having taught Federal Rule of Evidence 502 (FRE 502) in my law classes for over a decade, I felt I had a firm grasp of its nuances. Yet recent litigation where I serve as Special Master prompted me to revisit the rule with Proustian ‘fresh eyes,’ uncovering insights I hope to share here

I’ve long run with the herd in urging lawyers to “always get a 502 order,” never underscoring important safeguards against unintended outcomes; but lately, I had the opportunity to hear from experienced trial counsel on both sides of a FRE 502 order negotiation and have gained a more nuanced view.

Enacted in 2008, FRE 502 was a means to use the federal rules (and Congress’ adoption of the same) to harmonize widely divergent outcomes vis-à-vis subject matter waiver flowing from the inadvertent disclosure of privileged information. 

That’s a mouthful, and I know many readers aren’t litigators, so let’s lay a little foundation.

Confidential communications shared in the context of special relationships are largely shielded from compulsory disclosure by what is termed “privilege.”  You certainly know of the Fifth Amendment privilege against self-incrimination, and no doubt you’ve heard (if only in crime dramas) that confidential communications between a lawyer and client for the purpose of securing legal advice are privileged.  That’s the “attorney-client privilege.” Other privileges extend to, inter alia, spousal communications, confidences shared between doctor and patient and confidences between clergy and parishioner for spiritual guidance.  None of these privileges are absolute, but that’s a topic for another day. 

Yet another privilege, called “work-product protection,” shields from disclosure an attorney’s mental impressions, conclusions, opinions, or legal theories contained in materials prepared in anticipation of litigation or for trial.  Here, we need only consider the attorney-client privilege and work-product protection because FRE 502 applies exclusively to those two privileges.

Clearly, lawyers enjoy extraordinary and expansive rights to withhold privileged information, and lawyers really, REALLY hate to mess up in ways that impair those rights. I’d venture that as much effort and money is expended seeking to guard against the disclosure of privileged material as is spent trying to isolate relevant evidence. A whole lot, at any rate.

One of the quickest ways to lose a privilege is by sharing the privileged material with someone who isn’t entitled to claim the privilege.  Did the lawyer let the friend who drove the client to the law office sit in when confidences were exchanged?  Such actions waive the privilege.  One way to lose a privilege is by accidentally letting an opponent get a look at privileged material.  That can happen in a host of prosaic ways, even just by the wrong CC on an email.   More often, it’s a consequence of a failed e-discovery process, say, a reviewer or production error.  Inadvertently producing privileged information in discovery is every litigator’s nightmare.  It happens often enough that the various states and federal circuits developed different ways of balancing protection from waiver against findings that the waiver opened the door to further disclosure in a disaster scenario called “Subject Matter Waiver.”

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