Rule 502.        Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection

 

(a) Disclosure Made in a Federal Proceeding or to a Federal Officer of Agency; Scope of a Waiver - When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protectionk the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:

 

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure - when made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

 

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule or Civil Procedure 26(b)(5)(B).

(c)  Disclosure Made in a State Proceeding – When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:

 

(1)   would not be a waiver under this rule if it had been made in a Federal proceeding; or

(2)   is not a waiver under the law of the State where the disclosure occurred.

 

(d)  Controlling Effect of a Court Order – A Federal court order may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also nor a waiver in any other Federal or State proceeding.

 

(e)  Controlling Effect of a Party Agreement – An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

 

(f) Controlling Effect of This Rule – Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out on the rule.  And notwithstanding Rule501, this rule applies even if State law provides the rule of decision.

         

      (g) Definitions – In this rule:

(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and

 

(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.