A recent case confirms that the structure of Federal Rule of Evidence (FRE) 502 continues to confound litigants (and that lawyers can argue any side of an issue, even within the same case). FRE 502 governs inadvertent disclosure of privileged materials and permits court-ordered clawback arrangements by which litigants may clearly establish and tailor the conditions under which privilege will be deemed waived by inadvertent disclosure. In Rajala v. McGuire Woods,1 a party profited from the existence of an order issued pursuant to FRE 502(d) that it had actually opposed at an earlier stage of the case.
FRE 502
FRE 502 was adopted for two reasons: to resolve conflicting case law and assist in reducing litigation costs.2 First, the evidence rule served to address a continuing conflict among federal courts regarding the effects of inadvertent disclosure of materials subject to attorney-client privilege and work product immunity. Before FRE 502, certain courts applied a strict accountability approach under which inadvertent production would almost always result in a waiver of privilege, while other courts were more lenient or used a balancing test to determine whether the inadvertent production was to be deemed excusable.3 With the adoption of FRE 502(b), the general rule:
[D]isclosure does not operate as a waiver in a federal or state proceeding if (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).4
