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.
Continue Reading Reducing Risk and Cost with Federal Rule of Evidence 502(a): The Demise of Subject Matter Waiver