Crowell & Moring

I have been delinquent in posting this article that I recently published with a colleague in BNA’s Digital Discovery & e-Evidence® regarding Federal Rule of Evidence 502 and subject matter waiver. The article—entitled “The Demise of Subject Matter Waiver: Federal Rule of Evidence 502(a) Five Years Later”—surveys key cases interpreting and applying Rule 502(a) since its adoption about five years ago. We look at how courts have assessed subject matter waiver claims under the rule.

The good news is that the courts generally look to be applying it as Congress intended. This should dramatically reduce—if not entirely eliminate—the risk of subject matter waiver, especially for inadvertent privilege disclosures.

The bad news is that it seems the rule may not yet have yielded the cost savings Congress hoped for, because many litigants are still reluctant to fully exploit the rule’s protections and employ the sort of cost-saving approaches to preserving privilege Congress intended. In fact, it seems many clients and their counsel remain surprisingly unaware of Rule 502 or don’t fully understand it.

Rule 502(a) effectively eliminates subject matter waiver except where a party intentionally waives privilege through the intentional disclosure of privileged information in a selective, misleading, and unfair manner. The majority of judicial opinions applying the rule establish a clear principle:

If privileged documents are produced intentionally but would not be used in the case to the receiving party’s disadvantage, courts generally will limit waiver to the disclosed documents themselves. Where a party introduces privileged documents for strategic or tactical reasons, however, courts may find a broader subject-matter waiver.

In short, as we explain in the article, litigants who act fairly and reasonably with respect to their privileged information should have little to fear in the way of subject-matter waiver. Those who try to use privilege as both sword and shield, on the other hand, may face broader waiver—but not undeservedly so.

So what’s the bottom line? In the article we urge litigants to forgo the costly, tedious manual review of entire document collections and manual preparation of lengthy, detailed privilege logs, and instead take advantage of such cost-saving solutions as electronic privilege filters, technology-assisted review (or predictive coding), and electronically-generated privilege logs (using metadata). Manual review and logs can be relegated to those relatively few custodians and documents that really need it, under appropriate circumstances. This will save significant time and expense, and allow litigation counsel to focus on more important responsibilities—such as how to win the case.