Federal Rule of Evidence 502 governs the treatment of inadvertent disclosures of privileged attorney-client communications or work-product materials. While Rule 502 is an evidence rule, the cases interpreting and applying it focus on its impact on the scope of discovery. Enacted by Congress in 2008, it was designed to address the growing risks of inadvertent disclosure in the era of e-discovery. The rule acknowledges the practical challenges of privilege review and aims to reduce the associated costs and uncertainties. The comments to Rule 502 highlight the value of confidentiality orders in limiting costs of privilege review, especially in cases involving e-discovery.

Subsection (a) of the rule addresses intentional disclosures, while subsection (b) governs inadvertent disclosures. Specifically, Rule 502(b) establishes the default framework for determining whether an inadvertent disclosure results in a waiver of privilege. Under this rule, privilege is preserved if three conditions are met: the disclosure was inadvertent; the producing party took “reasonable steps” to prevent the disclosure; and upon discovery of the disclosure, the producing party promptly took reasonable steps to rectify the error, including compliance with Federal Rule of Civil Procedure 26(b)(5)(B).