CLCT Blog

Federal Rule of Evidence 502 finally passed the House and is now awaiting the President’s signature.  FRE 502 provides that inadvertent disclosure of privileged information in federal proceedings does not operate as a waiver in other federal or state proceedings IF the disclosure is inadvertent, the holder took reasonable precautions, and the holder took reasonable steps to rectify error, including the procedures listed in 26(b)(5)(B), if applicable.  If the court holds the privilege is waived, the waiver will extend to undisclosed information only if the disclosure was intentional, the disclosed and undisclosed information concern the same matter, and fairness requires disclosed and undisclosed information ought to be considered together.  An important point to remember, however, is that a court order that a privilege or protection is not waived by disclosure “binds all persons or entities in all federal and state proceedings whether or not they were parties to the litigation,” BUT, an agreement on the effect of disclosure between litigants is binding on ONLY the parties to the agreement.