In a recent decision resolving a dispute over the extent to which a party had waived the attorney-client privilege by producing and then permitting witnesses to testify at deposition about two email chains containing legal advice, Southern District Magistrate Judge Frank Maas noted that neither party had mentioned Federal Rule of Evidence 502, despite its clear applicability.1 He went on to observe that that omission should perhaps come as no surprise "since remarkably few lawyers seem to be aware of the Rule's existence despite its enactment nearly five years ago,"2 a circumstance he found "unfortunate" inasmuch as Rule 502 was designed to "avoid vexatious and time-consuming privilege disputes" such as the one before him.3 To the extent practitioners would benefit from a short refresher on Rule 502—particularly as it pertains to intentional disclosure of material covered by the attorney-client privilege and work product doctrine, we discuss below Rule 502(a), and Maas's decision in Swift Spindrift v. Alvada Insurance, applying that section of the rule.
Intentional Waiver
The Swift Spindrift litigation involved an insurance coverage dispute arising out of the protracted detention of the plaintiff's cargo ship by Libyan authorities after a Libyan importer obtained the vessel's arrest claiming it had delivered a defective cargo of corn. After posting a bond it thought (incorrectly) would secure the release of the ship, and engaging in extensive and unsuccessful litigation to obtain its release, the plaintiff sold the ship on an "as-is where-is" basis and sought recovery from its insurers for the difference between the fair market price of the ship and its sales price. The lawsuit before Maas concerned whether the loss was covered by the plaintiff's "war risk" policies.
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