Federal Rule of Evidence 502 (Introduction and Overview)

About the Federal Rule of Evidence 502 Resource Page

marble columns The Federal Rule of Evidence 502 Resource Page provides background and key links on the latest amendment to the Federal Rules of Evidence. The rule became effective on September 19, 2008 after Congress enacted the S. 2450 and the President signed the measure -- "A Bill To amend the Federal Rules of Evidence to address the waiver of the attorney-client privilege and the work product doctrine." See Pub. L. No. 110-322, 122 Stat. 3537 (Sept. 19, 2008). More information about the rule is available on the following FRE 502 Resource Pages: Legislative Materials; Additional Background Materials; Text of FRE 502; Key Cases; and coverage in the Federal Evidence Blog.

In general, Federal Rule of Evidence 502 resolves some current conflicts in the case law concerning the attorney-client privilege. The measure seeks to reduce litigation costs typically arising in the process of privilege review and production. The rule establishes a presumption against subject matter waiver, resolves the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues.

Federal Rule of Evidence 502 - Overview

Federal Rule of Evidence 502 (Attorney-Client Privilege And Work-Product Doctrine) became effective on September 19, 2008. This overview highlights how the rule seeks to resolve some current conflicts in the case law and to promote reduction of the cost of privilege review and production.

Federal Rule of Evidence 502 - Eight Primary Provisions
FRE 502(a)Disclosure Made In A Federal Proceeding Or To A Federal Office Or Agency; Scope Of A Waiver: FRE 502(a) limits waiver of the privilege normally to the communication or materials disclosed, and not to the entire subject matter of the communication. The scope of any waiver is therefore confined to the information disclosed unless "fairness" requires further disclosure.
FRE 502(b)Inadvertent Disclosure: FRE 502(b) clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege "took reasonable steps to prevent disclosure" and "promptly took reasonable steps to rectify the error."
FRE 502(c)Disclosure Made In A State Proceeding: FRE 502(c) addresses circumstances where disclosure was first made in a state proceeding and is later considered in a federal proceeding. The provision applies the federal or state law that furnishes the greatest protection to the privilege and work product.
FRE 502(d) Controlling Effect Of A Court Order: FRE 502(d) recognizes that a federal court may enter a confidentiality order providing "that the privilege or protection is not waived by disclosure connected with the litigation pending before the court."
FRE 502(e)Controlling Effect Of A Party Agreement: FRE 502(e) allows parties to enter into an agreement to limit the effect of any disclosure. The agreement is only binding on the parties unless the agreement is included in a court order.
FRE 502(f)Controlling Effect Of This Rule: FRE 502(f) notes that the rule "applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings" and "even if State law provides the rule of decision."
FRE 502(g)Definitions: FRE 502(g) includes definitions for "attorney-client privilege" and "work-product protection."
Pub. L. No. 110-322, § 1(c)Effective Date: FRE 502 applies "in all proceedings commenced after the date of enactment ... [Sept. 19, 2008] and, insofar as is just and practicable, in all proceedings pending on such date of enactment."
Federal Rules of Evidence