PUBLIC LAW 110–322—SEPT. 19, 2008 122 STAT. 3537 

Public Law 110–322 

110th Congress 

An Act 

To amend the Federal Rules of Evidence to address the waiver of the attorneyclient privilege and the work product doctrine. 

Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, 

SECTION 1. ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; 

LIMITATIONS ON WAIVER. 

(a) IN GENERAL.—Article V of the Federal Rules of Evidence 

is amended by adding at the end the following: 

‘‘Rule 502. Attorney-Client Privilege and Work Product; 

Limitations on Waiver 

‘‘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. 

‘‘(a) DISCLOSURE MADE IN A FEDERAL PROCEEDING OR TO A

FEDERAL OFFICE OR AGENCY; SCOPE OF A WAIVER.—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) the waiver is intentional; 

‘‘(2) the disclosed and undisclosed communications or 

information concern the same subject matter; and 

‘‘(3) they ought in fairness to be considered together. 

‘‘(b) INADVERTENT DISCLOSURE.—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) the disclosure is inadvertent; 

‘‘(2) the holder of the privilege or protection took reasonable 

steps to prevent disclosure; and 

‘‘(3) the holder promptly took reasonable steps to rectify 

the error, including (if applicable) following Federal Rule of 

Civil Procedure 26(b)(5)(B). 

‘‘(c) DISCLOSURE MADE IN A STATE PROCEEDING.—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) would not be a waiver under this rule if it had been 

made in a Federal proceeding; or 

‘‘(2) is not a waiver under the law of the State where 

the disclosure occurred. 

28 USC app. 

Sept. 19, 2008 

[S. 2450] 


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122 STAT. 3538 PUBLIC LAW 110–322—SEPT. 19, 2008 

LEGISLATIVE HISTORY—S. 2450: 

SENATE REPORTS: No. 110–264 (Comm. on the Judiciary). 

CONGRESSIONAL RECORD, Vol. 154 (2008): 

Feb. 27, considered and passed Senate. 

Sept. 8, considered and passed House. 

Æ 

‘‘(d) CONTROLLING EFFECT OF A COURT ORDER.—A 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. 

‘‘(e) CONTROLLING EFFECT OF A PARTY AGREEMENT.—An 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. 

‘‘(f) CONTROLLING EFFECT OF THIS RULE.—Notwithstanding 

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. 

‘‘(g) DEFINITIONS.—In this rule: 

‘‘(1) ‘attorney-client privilege’ means the protection that 

applicable law provides for confidential attorney-client communications; and 

‘‘(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.’’. 

(b) TECHNICAL AND CONFORMING CHANGES.—The table of contents for the Federal Rules of Evidence is amended by inserting 

after the item relating to rule 501 the following: 

‘‘502. Attorney-client privilege and work-product doctrine; limitations on waiver.’’. 

(c) EFFECTIVE DATE.—The amendments made by this Act shall 

apply in all proceedings commenced after the date of enactment 

of this Act and, insofar as is just and practicable, in all proceedings 

pending on such date of enactment. 

Approved September 19, 2008. 

28 USC app. 


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