In the past, most common-law courts developed an intense antipathy to privileges because they perceived privileges as obstructing the search for truth. To begin with, the courts made it difficult for claimants to assert privileges by prescribing rigorous foundational requirements for privilege claims. Moreover, the courts made it easy to find a waiver. As some commentators observed, many courts took an absolutist approach and demanded that holders guard their privileges like crown jewels. For example, the courts announced that even inadvertent production of privileged material could effect a waiver, a waiver as to any privileged communication automatically extends to any other privileged communication on the same subject matter, and holder may not make a selective waiver as to some third parties but not others. The rub was that in the era of the pretrial discovery of electronically stored information, these waiver rules imposed inordinate economic costs. Modernly, pretrial discovery can entail millions of pages of documents. Given these waiver rules, the only way to avoid waiver was to conduct a time-consuming, comprehensive preproduction privilege review. In some cases, the cost of the review could easily exceed the monetary stakes in the litigation. The problem became so acute that Congress intervened, enacting Federal Rule of Evidence 502. Rule 502(b) repudiates the rule that inadvertent production necessarily results in a waiver, and Rule 502(a) similarly rejects the automatic subject matter waiver rule.
One of the early drafts of Rule 502 contained a provision authorizing selective waivers, but that provision was withdrawn from the final draft that Congress voted on and approved. That legislative history has led many courts and commentators to conclude that a court may not authorize a selective waiver under Rule 502. On closer examination, though, that conclusion is only partially true. In any given case, the key is paying attention to the scope issues: the scope of Rule 502 and the scope of the selective waiver agreement between the parties.
On the one hand, assume that the parties ask the court to approve a narrow selective waiver agreement providing only that the holder’s disclosure of privileged information to the other party in the proceeding will not effect a waiver. Rule 502 governs only one type of waiver, namely, waivers effected by disclosure. On this assumption, though, the scope of the agreement coincides with the scope of Rule 502; a court order under Rule 502(d) would validate the agreement. If the parties reached a settlement after the disclosure and during the proceeding the holder performed no other act that would effect a waiver, by the terms of Rule 502(d), the holder would still be able to assert the privilege in subsequent litigation against third parties.
On the other hand, assume alternatively that the parties enter into a broader selective waiver agreement that purports to provide that without waiving, the holder may not only disclose but also allow the other party to the agreement to introduce evidence of the privileged communication at an adversary hearing in this proceeding. This agreement exceeds the scope of Rule 502; Rule 502 does not apply to waivers effected by the failure to object to the introduction of testimony about privileged communications. If the holder failed to object to the use of the evidence in the prior proceeding, Rule 502 would not preclude finding a waiver in subsequent litigation with third parties. Indeed, there is a grave risk that merely by consenting to that use of the privileged communication in the broader selective waiver agreement, the holder has lost the privilege.
Edward J. Imwinkelried, The Debate over the Permissibility of Selective Privilege Waiver Orders Under Federal Rule of Evidence 502(d): The Crucial Scope Issues, 73 SMU L. Rev. 779 (2020).