Advisory Committee Historical Note
Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules.
Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.”
Advisory Committee Note
The language of Rule 502 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Subdivision (a) defines pertinent terms: who is a lawyer, who is a client, who are their representatives. These definitions clarify Mississippi law. The only existing statute relating to attorney-client relationship is M.C.A. § 73-3-37 which, among other things, includes a provision that one of an attorney’s duties is “to maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients. . . .”
The term “client” includes individuals, corporations and associations, and governmental bodies. Mississippi decisional law is in accord with Rule 502(a)(1) in that the privilege protects communications between an attorney and one who consults him with a view towards retaining him, but who eventually decides not to employ him. See Perkins v. Guy, 55 Miss. 153 (1877). The services provided by the attorney must be legal services in order to be cloaked with the privilege. Services which are strictly business or personal do not enjoy the privilege. See McCormick, Evidence, 92. The Mississippi court has not recognized the privilege in those cases in which the attorney is merely a scrivener. Rogers v. State, 266 So. 2d 10 (Miss. 1972).
Rule 502(a)(2) defines representatives of a client. This takes on particular significance in regards to corporate clients. This group of employees who may be a client’s representatives is larger than the “control group”. The “control group” was formerly one of the leading tests for determining which corporate employees had the benefit of the privilege. See Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), in which the Supreme Court construed the language of the Federal Rules of Evidence as invalidating the control group test and so rejected it.
The definition of lawyer in Rule 502(a)(3) covers any person licensed to practice law in any state or nation. It includes persons who are not lawyers but whom the client reasonably believes are lawyers.
The definition of representative of the lawyer in Rule 502(a)(4) is broadly designed to include the lawyer’s employees and assistants. It also includes experts that the lawyer has hired to assist in the preparation of the case. It does not extend to an expert employed to be a witness. This conforms to existing Mississippi practice. Dictum in Wilburn v. Williams, 193 Miss. 831, 11 So. 2d 306 (1943), indicated that the court might have followed such a definition if the issue was before it.
A communication which takes place in the presence of a third party is not confidential unless it complies with the statement in Rule 502(a)(5). If the third party does not fall within these categories in this subdivision, his presence deems the communication not to be confidential. See Taylor v. State, 285 So. 2d 172 (Miss. 1973); Ferrel v. State, 208 Miss. 539, 45 So. 2d 127 (1950).
The test for confidentiality is intent. Thus, a communication made in public cannot be considered confidential. Intent can be inferred from the particular circumstances.
Rule 502(a)(6) and (7) define “lawyer-client privilege” and “work-product protection,” but make no attempt to alter the law on whether a communication or information is protected under the lawyer-client privilege or work-product protection as an initial matter. Subdivision (e) governs the scope of waiver and the effect of inadvertent disclosure.
Subdivision (b) is a statement of the rule. The rule is drafted in such a way as to prevent eavesdroppers from testifying about the privileged communication. See the Advisory Committee Notes to Deleted FRE 503 [which is identical to U.R.E. 502(b)].
The privilege extends to statements made in multiple party cases in which different lawyers represent clients who have common interests. Each client has a privilege as to his own statements. The FRE Advisory Committee Notes to Deleted Rule 503 state that the rule is inapplicable in situations where there is no common interest to be promoted by a joint consultation or where the parties meet on a purely adversary basis.
Subdivision (b) provides that the privilege includes lawyer to client communications as well as client to lawyer communications. See Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984).
Subdivision (c) establishes that the privilege belongs to the client or his personal representative. Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984). The lawyer’s claim is limited to one made on behalf of the client; he himself has no independent claim. See United States v. Jones, 517 F.2d 666 (5th Cir.1974).
Subdivision (d) excludes certain instances from the privilege. Rule 502(d)(1) does not extend the privilege to advice in aid of a future crime or fraud. The provision that the client knew or reasonably should have known of the criminal or fraudulent nature of the act is designed to protect the client who is mistakenly advised that a proposed action is lawful. See McCormick, Evidence, 75. Existing law in Mississippi on this point is unclear. Dicta in two 19th century cases suggest that the privilege did apply to protect statements regarding the client’s motives in fraudulent schemes. See Parkhurst v. McGraw, 24 Miss. 134
(1852) ; Lengsfield and Co. v. Richardson and May, 52 Miss. 443 (1876). Additionally, the federal appellate court in Hyde Construction Co. v. Koehring Co., 455 F.2d 337 (5th Cir. 1972), has determined that the Mississippi courts would allow the privilege when an attorney, acting as the client’s alter ego, commits a tort or fraud. It is uncertain, if this is an accurate reflection of the scarce Mississippi law on the point, but clearly under Rule 502(d)(1) the privilege in such a case would not apply.
Rule 502(d)(2) permits no privilege when the adversaries in a case claim the privilege from the same deceased client. The general rule is that the privilege survives death and may be claimed by the deceased’s representative. However, this rule makes no sense in some cases; for instance, in will contests when various parties claim to be the representative of the decedent. Only at the end of the litigation will the court have determined who is the deceased’s successor, and until it has made that determination, neither party is entitled to invoke the privilege.
Rule 502(d)(3) permits the use of statements made between a lawyer and his client when a controversy later develops between them, such as in a dispute over attorney’s fees or legal malpractice.
Rule 502(e) addresses two main issues. The first is the effect of certain disclosures of matters protected by the lawyer-client privilege or as work product. The second is the concern over otherwise unnecessary litigation costs incurred to protect against inadvertent waiver – especially in cases involving electronic discovery – that often bear no proportionality to what is at stake in the case. See S. Saltzburg, M. Martin, & D. Capra 1 Federal Rules of Evidence Manual § 502.02[1] (11th ed. 2016) (“[T]he common-law rules on waiver of privilege and work product were responsible for rising costs of discovery, especially discovery of electronic information. In complex litigation the lawyers spend significant amounts of time and effort to preserve privilege and work product by screening protected documents from discovery. . . . Moreover, an enormous amount of expense was being put into document production in order to protect against inadvertent disclosure of privileged information, because the producing party risked a ruling that even a mistaken disclosure can result in a subject matter waiver. [L]awyers’ fear of waiver led to extravagant claims of privilege, i.e., privilege claims often covered non-privileged material because lawyers were concerned about waiver if they underclaimed”).
Rule 502(e)(1) provides that an intentional disclosure, if a waiver, generally results in a waiver only of the communication or information disclosed; a subject matter waiver (of either privilege or work product) 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. See Rule 502(e)(2). The language concerning subject matter waiver — “ought in fairness” — is taken from Rule 106, 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. An inadvertent disclosure of protected information can never result in a subject matter waiver.
Under Rule 502(e)(2)(B), considerations bearing on the reasonableness of a producing party’s efforts include the number of documents to be reviewed and the time constraints for production. See Paul W. Grimm, Lisa Yurwit Bergstrom & Matthew P. Kraeuter, Federal Rule of Evidence 502: Has It Lived Up to Its Potential?, 17 Rich. J.L. & Tech. 8, ¶ 43 (2011) (“Determining whether reasonable precautions have been taken cannot be done in a vacuum, and considerations of how much is at stake in the litigation and the resources of the party that inadvertently produced the privileged or protected information are both appropriate and necessary . . . .”). A party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may effectively protect against a finding of waiver. See Kandel v. Brother International Corp., 683 F.Supp.2d 1076 (C.D.Cal. 2010) (Party hired a consultant to scan its servers and archives and put documents into a database that could be reviewed. Counsel provided consultant and document review team with a protocol containing specific instructions on designating protected materials). But see Peterson v. Bernardi, 262 F.R.D. 424 (D.N.J. 2009) (party took minimal steps to protect against inadvertent disclosure, and general statement that a privilege review was done, without any supporting details, was entitled to little weight). The rule does not require the producing party to engage in a post-production review, as that would increase the cost of discovery and impose the very thing the rule seeks to avoid. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.
Under Rule 502(e)(2)(C), a party must act promptly and reasonably once it discovers its mistaken disclosure. While a party is not required to check after production to determine whether a mistake has been made, it must seek the return of the material once the party is on notice of the error. See S. Saltzburg, M. Martin, & D. Capra 1 Federal Rules of Evidence Manual § 502.02[3][d] (11th ed. 2016) (An “innocent recipient of mistakenly disclosed confidential information could be put at a disadvantage if the disclosing party would sit on its right to get the information back. As time passes, the recipient could be entering the information into its own databases, providing it to its own experts, using it to inform pleadings, and so on. As time passes, it gets more costly to unring the bell struck by mistakenly disclosed information.”)
[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended July 1, 2016, to note restyling; amended effective July 1, 2020.]
