A bill to amend the Federal Rules of Evidence to address the waiver of the attorney-client privilege and the work product doctrine.
PL 110-322 (S.2450), enacted 09/19/2008

122 STAT. 3537 
PUBLIC LAW 110–322—SEPT. 19, 2008 
Public Law 110–322 
110th Congress 
An Act 
To amend the Federal Rules of Evidence to address the waiver of the attorney- 
client 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 pro-
ceeding 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. 
‘‘(d) CONTROLLING EFFECT OF A COURT ORDER.—A Federal court 
may order that the privilege or protection is not waived by disclo-
sure 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 agree-
ment 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 notwith-
standing 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 commu-
nications; 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 con-
tents 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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