Evidence: privileges

The cards

1. FRE 501Privilege in General
2. FRE 501: The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise
   1. 1the United States Constitution
   2. 2a federal statute
   3. 3rules prescribed by the Supreme Court
   But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
3. FRE 502Attorney-Client Privilege and Work Product; Limitations on Waiver
4. FRE 502: Attorney-Client Privilege and Work Product; Limitations on WaiverThe following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.
5. FRE 502(a): When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if
   1. 1the waiver is intentional
   2. 2the disclosed and undisclosed communications or information concern the same subject matter
   3. 3they ought in fairness to be considered together
6. FRE 502(b): When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if
   1. 1the disclosure is inadvertent
   2. 2the holder of the privilege or protection took reasonable steps to prevent disclosure
   3. 3the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B)
7. FRE 502(c): When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure
   1. 1would not be a waiver under this rule if it had been made in a federal proceeding
   2. 2is not a waiver under the law of the state where the disclosure occurred
8. FRE 502(d): Controlling Effect of a Court OrderA federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding.
9. FRE 502(e): Controlling Effect of a Party AgreementAn agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
10. FRE 502(f): Controlling Effect of This RuleNotwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
11. FRE 502(g): Definitions
    1. 1“attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications
    2. 2“work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial
    In this rule:

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