Federal Rule of Evidence 502 has become an important tool for civil litigators seeking to control discovery costs and risks. Yet savvy counsel also use the rule for more strategic ends. As reflected in the case law, Rule 502 permits parties in both civil and criminal proceedings, including grand jury matters, to exchange privileged information without risking broad subject matter waivers. This article suggests that both civil and criminal counsel should more frequently consider seeking Rule 502(d) orders to help resolve disputes, especially when faced with parallel proceedings and investigations.
Certainty as to Scope
Rule 502 of the Federal Rules of Evidence governs the scope of waiver of attorney-client privilege and work product protection— i.e., the extent to which disclosure of privileged information waives privilege over undisclosed information. Subsection (a) of the rule governs intentional disclosures; subsection (b) governs inadvertent disclosures. Federal common law continues to govern waiver following the use of privileged information (e.g., to establish a defense).
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