Commercial Litigation and Arbitration

A Gap in Federal Rule of Evidence 502 (Waiver of Privilege and Work Product)

There is a gap in the scope of Federal Rule of Evidence 502 (Attorney -Client Privilege and Work Product; Limitations on Waiver), the excellent new rule that was enacted into law on September 19, 2008.

The Rule addresses disclosures “made in a federal proceeding or to a federal office” (Rule 502(a), (b)) and disclosures “made in a state proceeding” (Rule 502(c)).

The Rule does not address disclosures made to a state office or agency outside of a state proceeding.

In a diversity action, Rule 501 dictates application of state law in this circumstance. If Rule 501 does not apply, one would expect the norms of Rule 502 to govern, even though, in theory, one could apply preexisting federal common law of waiver to this unaddressed scenario, thereby resuscitating the precept — overruled by Rule 502 — that an inadvertent waiver, in at least the D.C. Circuit, could effect a subject matter waiver of privilege and protection.

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