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The scope of change created by FRE 502 varies by jurisdiction because courts established different standards prior to the rule’s enactment, according to David Lender, partner at Weil, Gotshal and Manges. The majority of courts established a balanced approach concerning privilege waiver.
In Federal District Court for the Southern District of New York cases, such as Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., and in the Federal District Court for the Northern District of California, such as Hartford Fire Ins. Co. v. Garvey, the courts established a multifactor reasonableness test.
In jurisdictions that established a strict test, such as the Federal District Court of Massachusetts (Ares-Serono, Inc. v. Organon International) and the District of Columbia (Underwater Storage, Inc. v. United States Rubber Co.), the effect of the new rule may be more dramatic.