Rule 502 — Attorney-Client Privilege and Work Product; Limitations on Waiver

Fed. R. Evid. 502

• Source: Federal Rules of Evidence
• Rule: 502
• ARTICLE V: PRIVILEGES
• Citation: Fed. R. Evid. 502

Text

The following provisions apply, in the circumstances set out, to
disclosure of a communication or information covered by the at-
torney-client privilege or work-product protection.
(a) DISCLOSURE MADE IN A FEDERAL PROCEEDING OR TO A FEDERAL
OFFICE OR AGENCY; SCOPE OF A WAIVER. When the disclosure is
made in a federal proceeding or to a federal office or agency and
waives the attorney-client privilege or work-product protection,
the waiver extends to an undisclosed communication or informa-
tion in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or infor-
mation concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) INADVERTENT DISCLOSURE. When made in a federal proceeding
or to a federal office or agency, the disclosure 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).
(c) DISCLOSURE MADE IN A STATE PROCEEDING. When the disclo-
sure is made in a state proceeding and is not the subject of a
state-court order concerning waiver, the disclosure does not oper-
ate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made
in a federal proceeding; or
(2) is not a waiver under the law of the state where the dis-
closure occurred.
(d) CONTROLLING EFFECT OF A COURT ORDER. A federal court may
order that the privilege or protection is not waived by disclosure
connected with the litigation pending before the court—in which
event the disclosure is also not a waiver in any other federal or
state proceeding.
(e) CONTROLLING EFFECT OF A PARTY AGREEMENT. An agreement
on the effect of disclosure in a federal proceeding is binding only
on the parties to the agreement, unless it is incorporated into a
court order.
(f) CONTROLLING EFFECT OF THIS RULE. Notwithstanding Rules
101 and 1101, this rule applies to state proceedings and to federal
court-annexed and federal court-mandated arbitration proceed-
ings, in the circumstances set out in the rule. And notwithstand-
ing Rule 501, this rule applies even if state law provides the rule
of decision.
(g) DEFINITIONS. In this rule:
(1) ‘‘attorney-client privilege’’ means the protection that ap-
plicable law provides for confidential attorney-client commu-
nications; and
(2) ‘‘work-product protection’’ means the protection that ap-
plicable law provides for tangible material (or its intangible
equivalent) prepared in anticipation of litigation or for trial.

Advisory Committee Notes

(As added Pub. L. 110–322, §1(a), Sept. 19, 2008, 122 Stat. 3537; amended Apr. 26, 2011, eff. Dec. 1, 2011.)