D.C. Court Describes the Dramatic Effect of Federal Rule of Evidence 502

February 17, 2010

Among other things, Federal Rule of Evidence 502 (effective September 2008) prohibits federal courts from (1) automatically finding a waiver based on an inadvertent disclosure of a protected document (instead applying a fact-intensive approach), or (2) finding that any waiver caused by an inadvertent disclosure triggers a subject matter waiver (which would require the production of additional protected documents). The vast majority of jurisdictions already applied both of these standards before Rule 502, but there were some noteworthy exceptions — including Washington, D.C.

In Amobi v. District of Columbia Dep’t of Corrections, Civ. A. No. 08-1501 (BEL/JMF), 2009 U.S. Dist. LEXIS 114270 (D.D.C. Dec. 8, 2009), the court addressed the effect of an inadvertent production. The court acknowledged that “[j]ust over a year ago,” a litigant inadvertently producing a privileged document “would have no argument to protect against waiver; they would simply be dead in the water with an inadverten[t] disclosure.” Id. at *17. The court explained that Rule 502 “overrides the long-standing strict construction of waiver in this Circuit.” Id. Similarly, the court noted that “an inadvertent disclosure no longer carries with it the cruel cost of subject-matter waiver.” Id. at *19.

Although Rule 502 did not dramatically change the law in most jurisdictions, it caused a sea change in those few jurisdictions that had taken an unforgiving view of the waiver and the subject matter waiver effect of an inadvertent production of protected documents.