Federal Rule of Evidence 502 was enacted in 2008 as a response to the ongoing challenges of privilege review in the e-discovery era.  Considering the volume and complexity frequently involved in discovery of electronically stored information (ESI) and the often compressed time frames and massive costs for privilege review, parties faced significant hurdles to meeting their e-discovery obligations while still protecting privilege and managing costs.

The federal circuits applied varying standards on when a disclosure resulted in privilege waiver.  And even though many parties had begun to enter into "clawback" agreements allowing them to retrieve privileged documents that had been inadvertently produced without risking waiver, it was not clear whether these agreements were valid and, if so, if they would be binding on non-parties or in other matters.

Rule 502 sought to address multiple issues in one rule.  For instance, subdivision (a) limited "subject matter waiver," subdivision (b) resolved the circuit split on whether an inadvertent disclosure of privileged materials results in a waiver, setting forth a test to determine if a waiver occurred, and subdivision (d) authorized courts to order clawback agreements and enforce them against non-parties and in any other federal or state proceeding.