Whether selective waiver applies after adoption of the new rule is unclear; recent article notes arguments and suggests it may apply under certain constructions of FRE 502
Time will tell whether FRE 502, concerning the attorney-client privilege and work product doctrine, will attain its objectives to reduce costs associated with protecting against the waiver of the privilege and work product doctrine, and to clarify and provide consistent standards for application of the privilege and doctrine. Presently, there is only one reported case (previously noted here).
At this juncture, some questions have been raised following the enactment of the rule. One article of interest, by Peter K. Vigeland, Robert W. Trenchard, Daniel C. Richenthal and Michelle E. Kanter of Wilmer Cutler Pickering Hale and Dorr, poses these observations and questions:
- Whether FRE 502(d) permits selective waiver remains “unclear”
- Whether FRE 502(d) is applicable to a government investigation?
- Whether FRE Does Rule 502(e) overrules case law which has held that disclosure of protected information to the government does not constitute a general waiver, so that the information remains shielded from use by other parties?
Apart from FRE 502, the selective waiver issue may be necessary to consider as part of any debate on the Attorney-Client Privilege Protection Act. See Selective Waiver Under The Attorney-Client Privilege Protection Act.
For more on the selective waiver issue, see :
- Selective Waiver Absent From New FRE 502 .
- Lead Story: "Understanding New FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)," 5 Fed. Evid. Rev. 1454, 1462-64 (Oct. 2008) (discussing selective waiver doctrine after FRE 502).
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