Federal Rule of Evidence 502: New Safeguards and New Questions Concerning Waiver of Attorney-Client Privilege and Work-Product Protection

Federal Rule of Evidence 502 was enacted on September 19, 2008. The rule provides safeguards against waiver of attorney-client privilege and work-product protection. It applies in all proceedings commenced after the date of enactment, as well as proceedings pending on that date "insofar as is just and practicable."

While the rule does not resolve all questions about waiver, the protections provided have real teeth. Given the increasing costs and risks of discovery in this age of electronically stored information ("ESI"), federal court practitioners and state court practitioners alike should familiarize themselves with the new rule's framework and the new battlegrounds that are likely to emerge.

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