U.S. Federal Rule of Evidence 502

Ronald J. Hedges – December 2nd, 2008

The Federal Rules of Evidence have now been amended to include a new Rule 502 [PDF], which should represent a sea change in the law of waiver in the United States. Rule 502 is intended to introduce uniformity in the law of waiver of attorney-client privilege and work production protection throughout the United States courts and, through operation of the Commerce Clause of the United States Constitution, among State courts.

The problem that led to the enactment of the Rule is the sheer volume and expense that arises from the review of perhaps millions of documents that are “electronic” in nature. A party may inadvertently produce “protected” materials, and that inadvertent production may lead to waiver or privilege or work product. It is now commonplace for parties in a given litigation to enter into a so-called “claw back” or, more rarely, a “quick peek” agreement to protect against waiver of inadvertently produced materials. However, what happens when a nonparty seeks access to those inadvertently produced materials arguing that, regardless of the binding effect of an agreement between the parties, there has been a waiver as to anyone else?

One answer was suggested by Chief Magistrate Judge Grimm in Hopson v. Mayor and City Council, 232 F.R.D. 228 (D. Md. 2005). Judge Grimm suggested that, if parties entered into a nonwaiver agreement as a result of a “meet-and-confer” under Federal Rule of Civil Procedure 26(f), and that agreement was embodied in an order, any inadvertent production would be made under “judicial compulsion” and there would be no third party waiver. There was no certainty, however, that such a result could be obtained in other federal or State courts. See Henry v. Quicken Loans, 2008 WL 474127 (E. D. Mich. Feb. 15, 2008). Rule 502 is intended to provide that certainty.

For more see slaw.com