This article focuses on Federal Rule of Evidence 502, which by its first anniversary had been applied in various contexts in a series of federal court opinions. Although on its face it attempts to create a consistent set of rules for the waiver of the attorney-client privilege, many courts have wrestled with how to apply its provisions. In particular, problems have been presented by 502(b), which limits the waiver of privilege where the disclosure was inadvertent to cases where the producing party did not take reasonable steps to prevent the disclosure or failed to promptly take reasonable steps to rectify the error. The authors conclude that, to date, “the real-world effect of the rule is mixed. Courts seem to have adopted a more conservative interpretation of when inadvertent disclosure constitutes a waiver.” They further note that courts are continuing to “rely on some aspects of pre-502 case law to inform their inquiries.”
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