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Rule 502

By Joseph F. Savage, Jr., Jennifer L. Chunias and Marcy D. Smirnoff

Companies under government investigation commonly grapple with the risk of inadvertent disclosure of privileged information, typically during document productions, as well as the consequences of deliberately disclosing privileged information to the government ' either to gain credit for cooperation or to meet a self-reporting requirement.

Prior to the adoption of Federal Rule of Evidence 502, common law governed privilege waivers and was fraught with inconsistencies. Some courts found waiver only for intentional disclosure. Others held that any disclosure, even inadvertent, constituted waiver. Most courts found waiver for a careless inadvertent disclosure that the disclosing party failed to remedy promptly. This uncertainty and inconsistency was compounded by the unpredictability of the scope of any waiver, raising the specter of full subject matter waiver in later proceedings.

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