Originally from:

AAA Handbook on Arbitration Practice - Second Edition

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CHAPTER 28

WAIVER OF PRIVILEGE UNDER FEDERAL
EVIDENCE RULE 502 AND ARBITRATION
PROCEEDINGS

Angela Foster

I. Rule 502 of the Federal Rules of Evidence

Rule 502 of the Federal Rules of Evidence deals with the attorneyclient
privilege, the attorney work product rule, and the limitations on
waiver of protections from disclosure. Rule 502(b) provides that a
disclosure will not result in a subject matter waiver in a federal or state
proceeding if:

(i) the disclosure is inadvertent;
(ii) the holder of the privilege or protection took “reasonable steps”
to prevent disclosure; and
(iii) the holder “promptly” took “reasonable steps” to rectify the error.

Federal Rule of Evidence 502, which was amended in 2007 to
develop a uniform treatment of intentional and inadvertent disclosure of
privileged information in arbitration and court-related arbitration,
provides guidance for practitioners on how to prevent a court from
finding a subject matter waiver as a result of an inadvertent production of
a privileged document. In addition to analyzing the amended rule, this
chapter discusses recent case law suggesting that the amended rule
applies to private arbitration as well.
Despite the best efforts of litigants to avoid disclosing privileged
documents, mistakes may occur when a case involves an excessively large
number of documents. The concern is that inadvertent disclosure of a