R.I. R. Evid. 502
The 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:
R.I. R. Evid. 502
ADVISORY COMMITTEE'S NOTE
The substance of this Rule is based on Federal Rule of Evidence 502. Like the federal rule, this Rule is intended "to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection." Explanatory Note on Federal Evidence Rule 502. As used in this Commentary, the terms "privilege" and "privileged" are intended to refer to both attorney-client privilege and work-product protection.
(a) Rule 502(a): Scope of Waiver Resulting from Intentional Disclosures. Subsection (a) applies where material that would otherwise be privileged has been intentionally disclosed in litigation. In this situation, it is usually clear that as to the material actually disclosed any privilege that might otherwise have applied is waived. Courts disagree, however, on the extent to which such disclosure also waives privilege as to undisclosed communications on the same subject matter (so-called "subject matter waiver"). While some courts have held that even a minimal disclosure of privileged material waives the privilege as to all other documents on the same subject matter, that rule has been criticized. See, e.g., Federal Rule of Evidence 502(a), Advisory Committee Notes. The Rhode Island rule takes the position that subject matter waivers should be limited, following the federal approach.
The intent of this provision is to allow subject matter waivers only in limited and appropriate circumstances. As described by the federal Advisory Committee, the default rule is that a voluntary disclosure in a litigation proceeding that operates to waive attorney-client privilege or work-product protection, "generally results in a waiver only of the communication or information disclosed." Federal Rule of Evidence 502(a), Advisory Committee Notes. A subject matter waiver, on the other hand, is "reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary." Federal Rule of Evidence 502(a), Advisory Committee Notes. This rule is appropriate in order to prevent unfairness to the adversary while not allowing minor disclosures of privileged material to open the door to a lawyer's files more generally.
One basic issue is what is meant by the type of "intentional" disclosures subject to this provision - that is, whether to be an "intentional" disclosure simply requires proof that a party deliberately disclosed a document that was subject to attorney-client privilege or work product, or whether the rule requires proof that the party affirmatively intended not only to produce the document but also to waive the privilege. The approach taken Rule 502(a)(1) is that the requisite intent for a disclosure to fall within subsection (a) of the rule (addressing the scope of waiver where a disclosure was deliberate) should simply be an intent to disclose the document, and not a specific intent to waive privilege. Note that in this regard, the Rhode Island rule departs from the black letter of Federal Rule of Evidence 502(a), which specifies instead that there must be a finding that the "waiver is intentional."
The Rhode Island rule reflects the better approach, for several reasons. First, focusing on the privilege holder's intent to disclose a document rather than his intent to waive a privilege is more consistent with the longstanding principles governing attorney-client privilege waivers in this State more generally. In the von Bulow case, for example, this Court emphasized that an "intent to waive one's privilege is not necessary for such a waiver to occur." State v. von Bulow, 475 A.2d 995, 1006 (R.I. 1984) (citation omitted). As this makes clear, the traditional approach is that waiver follows where the court finds that the privilege holder intended to disclose the document or information, regardless of whether or not he or she knew that a privilege attached.
Second, the federal approach has been criticized by commentators insofar as it requires an affirmative intent to waive privilege for a disclosure to be treated as an "intentional" disclosure subject to Rule 502(a) (rather than as an "inadvertent" disclosure addressed under 502(b)). Federal treatises suggest that the "intent" relevant to waiver should mean that a party has intentionally disclosed privileged material with the goal of using the content of that material, rather than requiring proof of a knowing decision to waive privilege. See 23 Fed. Prac. & Proc. Evid. § 5444 (noting that under the preexisting law when FRE 502 was adopted, "the holder need only intend to reveal the communication; she need not know that disclosure waives the privilege"). According to federal commentators, any other approach would "make a drastic change in the attorney-client privilege" and raise a "host of practical problems." Id.
Third, proving that a party subjectively intended to waive attorney-client privilege or workproduct protection - in circumstances in which, by definition, that party is arguing that it had no such intent - is unduly challenging. See 23A Fed. Prac. & Proc. Evid. § 5444 (noting the difficulty of proving waiver when "an element of waiver requires the holder to testify contrary to his own interest"). It also creates perverse incentives. For example, an attorney who intentionally produced documents to opposing counsel because he failed to understand or competently apply attorney-client privilege rules could legitimately say he did not intend to waive privilege and would be rewarded for his ignorance by being allowed to take back the disclosure and avoid a waiver. Such an approach would be both unfair and untenable.
In sum, Rule 502(a)(1) is consciously drafted to provide that subsection (a) applies where the "disclosure" has been intentional, rather than where the "waiver" is intentional, as in the federal version of the rule. Rule 502(a) focuses on the intent to disclose a document or information rather than requiring proof that the party affirmatively intended to waive a privilege by disclosing the document or information.
The third element of the test, set out in Rule 502(a)(3) - that a subject matter waiver requires a finding that the undisclosed communications on the same subject matter "ought in fairness" to be considered along with the communications that were disclosed - deliberately uses the same language as Rhode Island Evidence Rule 106. As explained by the federal Advisory Committee, this language is appropriate because "the animating principle" is the same. Under both Rules, a party that makes a "selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation." Federal Rule of Evidence 502, Advisory Committee Notes. Under Rule 502, subject matter waivers will be limited to such circumstances.
Finally, note also that both Rules 502(a) and (b) speak to the effect of an intentional disclosure of privileged material made in a "Rhode Island proceeding" or "to a Rhode Island governmental agency or office." As with the federal rule, this is intended to encompass privilege waivers that result from disclosures made in connection with agency investigations or enforcement actions, as well as from those made during litigation in court. See Federal Rule of Evidence 502, Advisory Committee Notes.
Note that this does not mean Rule 502 directly governs an agency's hearing or investigative process. Administrative agencies are, of course, governed by their own rules and procedures, which in many instances, though not all, incorporate by reference the evidence rules and privilege principles applied in Rhode Island courts. See Rhode Island Administrative Procedures Act ("APA"), §42-35-10 (providing that in "contested cases" an agency will follow "the rules of evidence as applied in civil cases in the superior courts of this state" but that in certain circumstances, evidence not admissible under those rules may be submitted); see also id. (providing that agencies "shall give effect to the rules of privilege recognized by law").
Rather, this reference means that Rule 502 supplies the rule of decision when a party in a proceeding before a Rhode Island court argues that a disclosure previously made to a Rhode Island governmental office or agency has had the effect of waiving privilege (as occurred, for example, in the von Bulow case). As in litigation in court, agency investigations and proceedings may require parties to produce voluminous quantities of documents. Indeed, in some agency matters, such as business-related investigations of large companies, the risk of producing privileged documents may be far greater than in some court cases, such as simple breach of contract disputes. In both settings, privileged documents may be intentionally used, or may be inadvertently disclosed, giving rise to later disputes about privilege waivers. An agency investigation that ripens into a court case may, for example, present privilege issues related to documents that were disclosed to the agency during the pre-suit investigation.
The evidence rules need to be flexible and broad enough to cover these disputes, as well as those arising from disclosures made in connection with the court proceeding itself. Treating disclosures of privileged documents in both settings in Rhode Island under the same waiver rules best ensures consistent application of privilege principles in this State.
(b) Rule 502(b): No Waiver Where Disclosure is Inadvertent. Subsection (b) concerns "inadvertent" disclosures of privileged materials in litigation. As document production in litigation becomes a more demanding and complex process, the risk of inadvertently producing a privileged document increases, especially given the volume of documents that can be involved in electronic discovery. This can create uncertainty for parties, since the courts have not always agreed on the consequences that should follow, in terms of waiver of privileges, where a party has inadvertently produced privileged material to an adversary in litigation. Different jurisdictions have developed differing approaches to this question. See, e.g., Corey v. Norman, 1997 WL 34981820 (Me. Super.) (laying out three approaches courts have taken to privilege waivers based on inadvertent disclosures, ranging from an approach that any inadvertent disclosure waives privilege, to an approach that inadvertent disclosures can never waive privilege, with a middle ground in between).
Rule 502(b) takes a middle ground in terms of waiver and clarifies the factors that both the parties and the courts should consider when waiver issues arise because of inadvertent disclosures of privileged material or information. To conclude that a waiver has not occurred, a court must find that all three conditions of Rule 502(b) are satisfied.
The court must find, first, that the disclosure of privileged material or information was "inadvertent." While the term "inadvertent" is not defined, as the rule in its entirety is framed, an "inadvertent" disclosure as addressed in this subsection is intended to be the opposite of an "intentional" disclosure as addressed in subsection (a) above. See, e.g., Amobi v. D.C. Dep't of Corr., 262 F.R.D. 45, 53 (D.D.C. 2009) (noting that the rule does not define "inadvertent" and agreeing with those courts that define this term to simply require an inquiry as to whether "the party intended to produce a privileged document or if the production was a mistake"). As a general matter, if a party did not intend to disclose the document at issue and did not seek to use the document for some purpose in the litigation, the disclosure will be inadvertent. This understanding is consistent with the drafting history of the equivalent federal rule. See Advisory Committee on Evidence Rules, Minutes of Meeting of April 24-25, 2006 at 8 (explaining that the rule refers to "inadvertent" disclosures because "the word 'inadvertent' is widely used by courts and commentators to cover mistaken or unintentional disclosures of information covered by the attorney-client privilege or the work product protection").
For example, if a privileged document has been produced as part of a large document production even though the lawyer conducting the privilege review wished to remove all privileged documents, the production of the privileged document is "inadvertent" and meets the first element of the test above. In this case, to avoid waiver, the party would also have to show, second, that the steps taken to prevent disclosure were reasonable and, third, that it promptly took reasonable steps to fix the problem.
The rule provides guidance to parties: In order to avoid the risk of waiver, reasonable preventative measures must be in place to avoid inadvertent disclosures of privileged materials; in addition, reasonable remedial steps must be promptly taken if inadvertent disclosures are discovered. The terms "reasonable" and "promptly" were deliberately chosen to give the court some discretion in determining whether a waiver has occurred in a given case, given the wide variety of circumstances in which such issues may arise. See Federal Rule of Evidence 502, Advisory Committee Note to Subsection (b) (noting that the rule is "flexible" and can accommodate consideration of many factors).
For example, in a given case, to determine whether a party took reasonable steps to prevent disclosure of privileged materials, the court could consider such factors as "the number of documents to be reviewed and the time constraints for production." Id. Where electronic discovery is at issue, a party that uses "advanced analytical software applications and linguistic tools in screening for privilege and work product" may be found to have taken "reasonable steps" to prevent inadvertent disclosure, even if the documents were not individually reviewed by an attorney or paralegal. Id. A court reviewing a waiver issue should consider all of the facts that may be relevant to the elements above in deciding whether a waiver has occurred.
In terms of the requirement for prompt and reasonable remedial action in order to avoid a finding that privilege has been waived, this means that a producing party must "follow up on any obvious indications" that a privileged communication or information has been inadvertently produced. It does not, however, require the producing party to conduct a "post-production review" in every case even if there is no reason to suspect that privileged matter has slipped through. Id.
If the privilege holder successfully proves to a court that is has met all three of the elements in Rule 502(b), the consequence is that there is no waiver of any privilege, even as to the document actually produced. In such a case, the document inadvertently disclosed could not be admitted as evidence. On the other hand, if the privilege holder proves that the production was inadvertent, but fails to meet one or both of the remaining elements, a court should find waiver but must limit that waiver to the document actually produced. Under the approach taken in the rule, as under the comparable federal rule, "an inadvertent disclosure of protected information can never result in a subject matter waiver." Federal Rule of Evidence 502, Advisory Committee Note to Subsection (a).
Note that this subsection of the Rhode Island Rules of Evidence concerns only the question of waiver of privilege, and does not address what, if any, obligations a recipient may have to notify another person or to return, destroy, or otherwise dispose of any privileged document that has been inadvertently produced and is not the subject of any waiver.
In this regard, the Rules of Evidence should be read in conjunction with the Rhode Island Rules of Professional Conduct. In particular, Rule of Professional Conduct 4.4(b) provides that a lawyer who is or should be aware that he or she has received a document that was inadvertently disclosed must "promptly notify the sender" (though the ethical rules are silent on any duty to return or destroy that document). See Supreme Court R. of Prof. Conduct 4.4(b) and cmt. 2.
Where electronically stored information (ESI) is at issue, the evidence rules are also supplemented by newly-adopted Superior Court Rule of Civil Procedure 26(b)(7). This rule provides a procedure for asserting privilege after a privileged ESI document has been produced in civil discovery, and requires the party who is notified of such a privilege claim to either return or destroy the ESI document copy or seek a privilege ruling from the court. See R.I. R. Civ. P. 26(b)(7) (regarding claims of privilege or work product protection after production of electronically stored information).
This civil procedure rule is broader in its application than the default rule reflected in Rule 502(b) in that the procedure created by Rule 26(b)(7) is designed, deliberately, to allow a party to "claw back" privileged ESI evidence without having taken reasonable precautions in advance to cull out privileged documents stored in electronic form. Note that similar protections can be achieved by court order under subsection (d) of this Rule. As discussed below, Rule 502(d) allows a Rhode Island court to enter an order specifying the conditions under which privilege will be waived or preserved in connection with disclosures in a pending proceeding. Such an order may override the default rules otherwise applicable under Evidence Rules 502(a) and (b).
(c) Rule 502(c): Choosing the Waiver Law that is Most Protective. Rule 502(c) is a choice of law provision. This rule is targeted at the limited but important circumstance in which a ruling must be made in a proceeding in Rhode Island about whether privilege was waived when the privilege holder disclosed protected material in a proceeding in another forum. Two factors must be present to call this rule into play: the prior disclosure occurred in litigation in a different jurisdiction (either a federal proceeding or a proceeding in another state); and the court in that jurisdiction has not issued any order concerning whether that disclosure waived privilege.
In such circumstances, a choice of law determination must be made before reaching the question whether privilege was waived: Should the Rhode Island court follow the waiver principles that apply in Rhode Island, or the waiver principles followed in the jurisdiction in which the disclosure occurred? Rule 502(c) answers that question by telling the court, in essence, to determine which jurisdiction's waiver law is most protective of the privilege at issue, and apply that law. In other words, there can be no waiver based on a disclosure of protected documents in a federal proceeding or in a proceeding in another state either if waiver would not result had the disclosure been made in a Rhode Island proceeding or if the jurisdiction at issue would not find waiver. Either suffices. This principle applies to both disclosures that are intentional and to disclosures that are inadvertent.
This provision recognizes that different jurisdictions may follow different approaches to determining whether waiver has occurred and, if so, the scope of any such waiver. For example, consider a case in which the protected documents now sought to be introduced as evidence in a Rhode Island court were previously produced by a party inadvertently during litigation in a state that follows the rule that an inadvertent production of privileged documents can never waive privilege. Rhode Island Rule 502(b), on the other hand, allows waiver to be found in some cases even if the privilege disclosure was inadvertent (depending on the preventative and remedial steps taken). In such a case, applying Rhode Island law on inadvertent document production to find waiver could well undermine the other state's policies and unfairly penalize the party that produced the document in that state. See, e.g., Federal Rule of Evidence 502, Advisory Committee Note to Subsection (c) (explaining why the "proper solution" of the difficult choice of law issues that arise in such cases is for the court to "apply the law that is most protective of privilege and work product"). The opposite concern comes into play where the other jurisdiction's waiver rule is less protective than Rhode Island's rule. By selecting the most protective waiver rule at issue in such circumstances, the rule best respects both the policies of Rhode Island and those of the other jurisdiction.
(d) Rule 502(d): Controlling Effect of Non-Waiver Court Order. Rule 502(d) has been described by commentators as one of the most important provisions of the rule. It is intended to facilitate the recent trend - led by the federal courts - to help parties reduce discovery costs by orders providing that the parties may exchange documents in specified ways without waiving applicable privileges. Such orders are sometimes called "claw back" or "quick peek" arrangements. See Federal Rule of Evidence 502, Advisory Committee Note to Subsection (d) (observing that "claw back" or "quick peek" arrangements are a "way to avoid the excessive costs of pre-production review for privilege and work-product"). The concept is that, with the imprimatur of the court (usually on terms proposed by the parties), discovery can be expedited by allowing the assertion of privilege even after a document exchange has occurred. Such orders can reduce or eliminate the need for burdensome pre-production privilege review for voluminous document productions.
The problem is that if such orders are not binding in future litigation, parties will not trust that they can exchange documents under such arrangements without fear that a court in a later case will find that the disclosure amounted to a waiver. As the federal Advisory Committee put this point, "the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered." Federal Rule of Evidence 502, Advisory Committee Note to 502(d).
Rule 502(d) thus establishes that such orders will control in future litigation. By obtaining a court order, this provision allows a party to get predictable protection for privileged material whether or not the party has not taken the care that would be necessary for protection under the "inadvertent disclosure" provision in Rule 502(b). Indeed, the very purpose of such orders is to reduce pre-production costs of review by allowing the post-production assertion of privileges. Under the rule, such orders will also provide protection against others who were not parties to the litigation in which the disclosure was made. See Federal Rule of Evidence 502, Advisory Committee Notes (noting that the federal rule "provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, its terms are enforceable against non-parties in any federal or state proceeding").
Federal courts applying the comparable provision of the federal evidence rules have held that to be effective, an order entered under Rule 502(d) must expressly state that it is the court's intent that the provisions of the order apply to any privilege waiver issues instead of the principles that would ordinarily apply under Rules 502(a) and (b). See, e.g., Maxtena, Inc. v. Marks, 289 F.R.D. 427, 444 n. 16 (D. Md. 2012) (noting that "[a]lthough Rule 502 recognizes that the default test set forth in subsection (b) may be superseded by court order or agreement of the parties . . . such an order or agreement must provide concrete directives regarding each prong of Rule 502(b) . . . Otherwise, Rule 502(b) will be used to fill in the gaps in controlling law."). To ensure that such an order achieves the intended results, a Rhode Island court entering an order under Rule 502(d) should explicitly provide that the order's terms are intended to supersede the principles otherwise applicable under Rules 502(a) and (b).
This provision of the Rule also authorizes courts, upon proper application, to issue an order governing privilege waivers in connection with a contested agency proceeding or agency investigation. This aspect of Rule 502(d) contemplates that the orders authorized by the rule may be entered by a Rhode Island court not only with respect to a pending court case, but also, upon proper application, with respect to an agency matter (just as courts can, for example, make privilege rulings on a motion to quash an agency subpoena). Such an application could be filed in the appropriate Rhode Island court, invoking the court's equity jurisdiction. See, e.g., G.L. 1956 § 8-2-13 ("The superior court shall, except as otherwise provided by law, have exclusive original jurisdiction of suits and proceedings of an equitable character and of statutory proceedings following the course of equity . . ."); see also, e.g., La Petite Auberge, Inc. v. Rhode Island Comm'n for Human Rights, 419 A.2d 274, 279 (R.I. 1980) ("[C]onsidered as a matter of subjectmatter jurisdiction, the jurisdiction of a court of equity to aid a respondent who claims he is being irreparably harmed by the conduct of administrative proceedings may not be disputed.").
(e) Rule 502(e): Only the Parties Are Bound by a Non-Waiver Agreement. Rule 502(e) provides an important warning to parties in litigation: Party agreements about disclosing privileged documents bind only the parties to the agreement unless they are embodied in a formal order. This rule makes clear that parties must have any private confidentiality agreements approved and adopted as a court order to be fully protected against any potential waiver of privilege. Otherwise, a person who was not a party to the agreement could later argue that privilege was waived by the exchange of documents between the parties, even though the parties themselves agreed not to make any such challenge. This directly follows the comparable provision of the federal rule.
(f) Rule 502(f): Application to Court-Annexed and Court-Mandated Arbitration. Rule 502(f) follows the federal rule and is intended to make clear that the principles adopted in Rule 502 apply to any arbitration proceeding ordered by a Rhode Island court or conducted under a program administered by a Rhode Island court. Note that the rule does not purport to apply the waiver principles of the rule to all arbitrations, only those conducted under the auspices of the court (though parties to purely private arbitrations could certainly agree to follow the same principles). This provision of the Rhode Island evidence rules is thus tied to the Rhode Island rules concerning court-annexed arbitration. See generally R.I. R. Arb. Rule 1(a) (providing that civil actions filed in Superior Court seeking monetary relief not exceeding $100,000 can be referred to court-annexed arbitration).
(g) Rule 502(g): Definitions of Relevant Terms. Rule 502(g) defines some of the terms used in the rule.
First, Rule 502(g)(1) and (2) makes clear that questions concerning the general protection afforded by attorney-client privilege and work-product protection must be determined by reference to the "applicable law" and are not addressed in this rule.
Second, Rule 502(g)(3) defines the term "proceedings" as used in Rule 502 to mean court proceedings, and defines "Rhode Island proceedings" to mean proceedings before a Rhode Island court. In this respect, Rule 502(g) hews closely to the comparable federal rule on which it is based. The Rule also defines a "Rhode Island arbitration proceeding" (as used in Rule 502(f)) to mean an arbitration proceeding ordered by a Rhode Island court or conducted under a program administered by a Rhode Island court.