Sometimes a party has to decide whether to give privileged information to its adversary. The benefit is the potential to use it at trial; the risk is the possibility of waiving other privileged information on the same subject matter. For disclosures made in a federal proceeding, Rule 502(a) of the Federal Rules of Evidence governs subject matter waiver. This article summarizes the rule and provides five recent examples of how courts have applied it.
Rule 502 was enacted in 2008. It abolished the old rule that any disclosure of privileged material—voluntary or not—constituted a waiver of privilege on other information concerning the same subject matter(Trs. of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc.). Under 502(a), subject matter waiver occurs only if the following three elements are satisfied: