Federal Evidence Review

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
Reported Cases Citing FRE 502
FRE 502(b) Inadvertent Disclosure	Convertino v. U.S. Department of Justice, _ F.Supp.2d _ (D.D.C. Dec. 10, 2009) (No. Civil Action 04-0236 (RCL))	Disclosure of private e-mails to private counsel was inadvertent where reasonable steps were taken to delete the emails and taking steps to prevent disclosure by intervening in the action and asserting the attorney-client privilege Blog Post: Government Workplace Private E-mails Were Covered By The Attorney-Client Privilege
FRE 502(b) Inadvertent Disclosure	Amobi 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 Disclosure	Coburn Group, LLC, v. Whitecap Advisors LLC, 640 F.Supp.2d 1032 (N.D.Ill. Aug. 7, 2009) (Case No. 07 C 2448)	Inadvertent disclosure of three e-mails (16 pages) out of 40,000 documents produced where reasonable steps were taken to rectify the situation Blog Post: Case Highlights Inadvertent Disclosure Standards Under FRE 502(b)
FRE 502(b) Inadvertent Disclosure	Peterson 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 Disclosure	Clarke v. J.P. Morgan Chase & Co., Case No. 08 Civ. 02400 (CM) (DF) (SDNY Apr. 10, 2009)	Inadvertent disclosure under FRE 502(b) did not apply to e-mail where counsel “had ample opportunity to discover and assert the claimed privileged status of the e-mail” yet failed to do so Blog Post: Inadvertent Disclosure Under FRE 502(b) Not Shown By Failure To Assert Privilege Promptly
FRE 502(b) Inadvertent Disclosure	Heriot v. Byrne, 257 F.R.D. 645 (N.D. Ill. March 20, 2009)	Finding inadvertent disclosure of privileged materials by vendor assisting in the production of electronic discovery After applying FRE 502(b) factors, court also notes “the unfairness of penalizing Plaintiffs for an error that it neither caused nor anticipated” Blog Post: Inadvertent Disclosure By Vendor Did Not Require Waiver After Applying FRE 502(b) Factors
FRE 502(b) Inadvertent Disclosure	Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. Nov. 14, 2008) (Civil Action No. 07-4756)	Inadvertent disclosure found for more than 800 e-mails which were ultimately placed on a privilege log No inadvertent disclosure for documents which were not included on any privilege log Blog Post: Five Factors Applied To Determine Inadvertent Disclosure Under FRE 502(b)
Cases Cited In FRE 502 Advisory Committee Note
FRE 502(a) Disclosure Made in a Federal Proceeding	In 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 Proceeding	In 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 Disclosure	Hopson 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 Disclosure	Lois 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 Disclosure	Hartford 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 Proceeding	Tucker 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 Order	Zubulake 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 Scope	Nguyen 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 Scope	Ryers v. Burleson, 100 F.R.D. 436 (D.D.C. 1983) (allegation of lawyer malpractice constituted a waiver of confidential communications under the circumstances)