Commercial Litigation and Arbitration

Revised Rule 502 on Privilege Waiver — Final Committee Version

Download associated file: Final Rule 502 from Evid Committee.pdf 

The meeting of the Advisory Committee on the Federal Rules of Evidence Rules has ended, and the final Committee version of Rule 502 is attached (it goes to the Standing Committee in June). Most notable: Selective waiver was broken out into a separate statute for Congress to consider for separate legislation -- the Committee took no position on the merits of selective waiver. Other important changes to Rule 502:

1. There is a new subdivision clarifying that it applies in diversity cases.

2. There is a new subdivision clarifying that it applies to state proceedings despite rules 101 and 1101.

3. The text clarifies that federal law applies to determine the effect of a disclosure of protected information made in state proceedings, when that information is later offered in a federal trial -- unless the state rule provides greater protection, in which case state law applies.

4. An intent requirement added to subject matter waiver -- no subject matter waiver unless the disclosure of protected information was intentional.

5. The following language was deleted from Subdivision (b): "once the holder knew or should have known of the disclosure" — "reasonable and prompt" is the requirement for retrieving inadvertently-produced material.

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