Federal Rule of Evidence 502 (Cases Involving Federal Rule of Evidence 502)

This FRE 502 Cases Page provides a table that summarizes and links to cases applying Federal Rule of Evidence 502. Periodically the table will be updated as new cases are reported. The table also includes a section that highlights key cases cited in the Advisory Committee Note to FRE 502, which was included in the Congressional Record. These cases may aid in the interpretation and application of the new rule.

If you become aware of any cases pertinent to Federal Rule of Evidence 502 that are not cited in the table below, please contact the Federal Evidence Review. Other information on the FRE 502 Resource Pages, includes an Overview; Legislative Materials; Additional Background Materials; Text of FRE 502; and coverage in the Federal Evidence Blog.

FRE 502 Section Case Holding/ Notes/ Blog Posts
Cases Citing FRE 502
FRE 502(d) "Clawback" OrderRadian Asset Assur., Inc. v. College of the Christian Bros. of New Mexico, No. CIV 09-0885 (D.N.M. Oct. 22, 2010)
FRE 502(d) "Clawback" OrderRajala v. McGuire Woods, No. 08-2638 (D. Kan. July 22, 2010)
FRE 502(b) Inadvertent Disclosure

FRE 502(d) "Clawback" Order
Board of Trustees, Sheet Metal Workers' National Pension Fund v. Palladium Equity Partners, LLC, 722 F.Supp.2d 845 (EDMI July 14, 2010)
FRE 502(b) Inadvertent DisclosureInhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., _ F.Supp.2d _ (S.D. Ohio Aug. 28, 2012) (Civil Action No. 2:07-CV-116)
  • Disclosure of 347 e-mails to opposing counsel was waived where the defendant “did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute,” and the defendant “made insufficient attempts to mitigate its damage even after it learned of the disclosure"
  • Blog Post: Inadvertent Disclosure Of Privileged Communications Was Waived Under FRE 502(b)
FRE 502(b) Inadvertent DisclosureConvertino v. U.S. Department of Justice, 674 F.Supp.2d 97 (D.D.C. Dec. 10, 2009) (No. Civil Action 04-0236 (RCL))
FRE 502(b) Inadvertent DisclosureAmobi v. District of Columbia Dept. of Corrections, 262 F.R.D. 45 (D.D.C. Dec. 8, 2009)
  • Inadvertent disclosure of attorney memorandum was not protected by the attorney-client privilege but was covered by the work product privilege
  • Proponent of privilege holds the burden to show non-waiver applies under FRE 502
  • Inadvertent disclosure means “unintended disclosure” under FRE 502(b)
  • Because the defense failed to identify specific steps to prevent disclosure, “the protection of the work-product privilege has been waived and plaintiff does not have to return, sequester, or destroy the memorandum.”
  • Blog Post: Failure To Show Reasonable Steps Were Taken To Prevent Disclosure Under FRE 502(b)
FRE 502(b) Inadvertent DisclosureCoburn Group, LLC, v. Whitecap Advisors LLC, 640 F.Supp.2d 1032 (N.D.Ill. Aug. 7, 2009) (Case No. 07 C 2448)
FRE 502(b) Inadvertent DisclosurePeterson v. Bernardi, 80 Fed. R. Evid. Serv. 134 (D.N.J. July 24, 2009) (Civil No. 07-2723-RMB-JS)
  • The plaintiff failed to meet his burden to show most of the disclosed documents were either privileged or protected work product, or were inadvertently disclosed under FRE 502(b)
  • However, in a “rare” case in “the interests of fairness and justice” in order to avoid “an injustice” notwithstanding the lack of a showing that counsel took steps to protect against inadvertent disclosure, nine pages of documents were entitled to protection under FRE 502(b)
  • Blog Post: Flexible Application Of FRE 502(b) Considering The “Interests Of Fairness And Justice”
    FRE 502(b) Inadvertent DisclosureClarke v. J.P. Morgan Chase & Co., Case No. 08 Civ. 02400 (CM) (DF) (SDNY Apr. 10, 2009)
    FRE 502(b) Inadvertent DisclosureHeriot v. Byrne, 257 F.R.D. 645 (N.D. Ill. March 20, 2009)
    FRE 502(b) Inadvertent DisclosureRhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. Nov. 14, 2008) (Civil Action No. 07-4756)
    Cases Cited In FRE 502 Advisory Committee Note
    FRE 502(a) Disclosure Made in a Federal ProceedingIn re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D. D.C. 1994)
    • Waiver of work product is limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage.
    • ACN cites case as an indication of the general practice that a voluntary disclosure in a federal proceeding generally results in a waiver only of the communication or information disclosed and does not result in a subject matter waiver.
    FRE 502(a) Disclosure Made in a Federal ProceedingIn re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989)
    • Inadvertent disclosure of documents during discovery automatically constitutes a subject matter waiver.
    • ACN states that FRE 502 is intended to "reject[ ] the result in In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989)."
    FRE 502(b) Inadvertent DisclosureHopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005) ("Specifically, three distinct positions have been taken by the courts: the ‘strict accountability’ approach followed by the Federal Circuit and the First Circuit (which almost always finds waiver, even if production was inadvertent, because ‘once confidentiality is lost, it can never be restored’); the lenient/ ‘to err is human’ approach, followed by the Eighth Circuit and a handful of district courts (which views waiver as requiring intentional and knowing relinquishment of the privilege, and finds waiver in circumstances of inadvertent disclosure only if caused by gross negligence); and the third approach, adopting a ‘‘balancing’ test that requires the court to make a case-bycase determination of whether the conduct is excusable so that it does not entail a necessary waiver.’”)
    • Case canvases the prior case law concerning inadvertent disclosure and highlights three positions.
    • ACN provides that FRE 502 adopted “the middle ground” position and provides for “inadvertent disclosure of protected communications or information in connection with a federal proceeding or to a federal office or agency does not constitute a waiver if the holder took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver."
    FRE 502(b) Inadvertent DisclosureLois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) (disclosure of 22 privileged documents out of 16,000 pages inspected and 3,000 pages produced was inadvertent after considering factors)
    • Cases list factors that may be applied to determine whether disclosure was inadvertent.
    • While noting that the case law factors may be applied, the ACN indicated that “[t]he rule does not explicitly codify that test, because it is really a set of non-determinative guidelines that vary from case to case. The rule is flexible enough to accommodate any of those listed factors.”
    FRE 502(b) Inadvertent DisclosureHartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D.Cal. 1985) (applying Lois Sportswear factors, including “(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error, (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the ‘overriding issue of fairness’,”)
    • Court concludes the work product protection was waived by the disclosure at issue in the case.
    FRE 502(c) Disclosure Made In A State ProceedingTucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 499 (D.Md. 2000) (noting that a federal court considering the enforceability of a state confidentiality order is ‘‘constrained by principles of comity, courtesy, and . . . federalism’’)
    • ACN notes that "The rule does not address the enforceability of a state court confidentiality order in a federal proceeding, as that question is covered both by statutory law and principles of federalism and comity."
    • Separate statutes and rules govern this issue, and the Tucker case is cited as one example dealing with the issue.
    FRE 502(d) Controlling Effect Of A Court OrderZubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting use of “so-called ‘claw-back’ agreements that allow the parties to forego privilege review altogether in favor of an greement to return inadvertently produced privilege documents”)
    • FRE 502(d) supports the use of efficiency measures such as “quick peek” or “claw-back”arrangements by parties to disclose protected information to focus on key litigation issues and conserve costs in pre-production privilege review.
    • The Zubulake case is cited favorably as an example of these type of agreements.
    FRE 502 ScopeNguyen v. Excel Corp., 197 F.3d 200 (5th Cir. 1999) (reliance on an advice of counsel defense waives the privilege with respect to attorney-client communications pertinent to that defense)
    • ACN notes the scope of the rule and notes that: “The rule is not intended to displace or modify federal common law concerning waiver of privilege or work product where no disclosure has been made.”
    FRE 502 ScopeRyers v. Burleson, 100 F.R.D. 436 (D.D.C. 1983) (allegation of lawyer malpractice constituted a waiver of confidential communications under the circumstances)
    Federal Rules of Evidence