Rule 502

Prior to the adoption of Federal Rule of Evidence 502, common law governed privilege waivers and was fraught with inconsistencies. Some courts found waiver only for intentional disclosure. Others held that any disclosure, even inadvertent, constituted waiver. Most courts found waiver for a careless inadvertent disclosure that the disclosing party failed to remedy promptly. This uncertainty and inconsistency was compounded by the unpredictability of the scope of any waiver, raising the specter of full subject matter waiver in later proceedings.

Congress asked the Judicial Conference to initiate rule-making on privileges in order to:

• protect against the forfeiture of privilege where a disclosure in discovery is the result of an innocent mistake;
• permit parties, and courts, to protect against the consequences of waiver by permitting disclosures of privileged information between the parties to a litigation; and
• allow persons and entities to cooperate with government agencies by turning over privileged information without waiving all privileges as to other parties in subsequent litigation.

Letter from Honorable F. James Sensenbrenner, Jr., Chairman of the House Committee on the Judiciary, to Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts (Jan. 23, 2006), available at http://www.uscourts.gov/rules/evidence502.html.