eDiscovery Daily Blog

eDiscovery Law: Federal Rule of Evidence 502 Protects Against Accidental Waiver of Privilege


As noted yesterday, attorneys have reason to be worried about accidental waiver of privilege in today’s cases, where discovery of electronic documents reaches unprecedented volumes. With more electronically stored information (ESI) comes an increased risk of accidentally producing privileged information. Fortunately, there are provisions that can prevent some of the damage of such accidents.

Yesterday, we discussed “clawback” provisions and “quick peek” agreements. Both of these types of agreements can be used to protect against accidental waiver of privilege through production of the wrong documents for discovery. But, sometimes parties are unable to complete such agreements.  In other cases, these protections have been defeated by lawyers in court.  That's where Federal Rule of Evidence (FRE) 502 steps in to ensure that privilege is safeguarded when parties inadvertently produce privileged materials, assuming they take reasonable steps to avoid such inadvertent production.

FRE 502 was enacted in 2008, and it provides that:

  • "Subject matter waiver", the idea that production of a single privileged document waives privilege on all related documents on the same subject matter, does not exist. If and when waiver occurs, it is limited to the documents and information that were actually produced.
  • There is no waiver if the producing party takes reasonable steps to withhold privileged material or requests that materials accidentally produced be returned or destroyed.  Of course, what constitutes “reasonable steps” is open to interpretation.
  • If parties have agreed that inadvertent production will result in no waiver, such an agreement is binding only on the parties involved unless it is part of a court order. The effect of the agreement is broader if the agreement is included in a court order.
  • Any conflict between state and federal rules is determined by choosing the rule that provides the greatest protection of privilege.
  • FRE 502 applies even if a case is conducted under state law.

FRE 502 is relatively new and is still being interpreted by courts, but one thing is clear: the greatest protection afforded by FRE 502 is present when parties have entered into a “clawback” agreement and requested that it be made part of a court order. However, there remains no definitive ruling on what constitutes inadvertent production of privileged information or what constitutes “reasonable steps” to avoid such inadvertent production.

So, what do you think? Does FRE 502 provide important protections, or does it overstep in protecting parties and attorneys who are negligent? What do you think is necessary for a party to claim that production was inadvertent? Please share any comments you might have or if you'd like to know more about a particular topic.