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 Commonwealth Proceeding or to a Commonwealth Office or Agency; Scope of a Waiver. When the disclosure is made in a Commonwealth proceeding or to a Commonwealth office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Commonwealth, federal, or other state or territory proceeding only if:

(1) the waiver is intentional;

EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015

(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 Commonwealth proceeding or to a Commonwealth office or agency, the disclosure does not operate as a waiver in a Commonwealth, federal or other state or territory 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 Commonwealth Rules of Civil Procedure.

(c) Disclosure Made in a Federal or another State’s Proceeding. When the disclosure is made in a federal or another state’s proceeding and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Commonwealth proceeding if the disclosure:

(1) would not be a waiver under this rule if it had been made in a Commonwealth proceeding; or

(2) is not a waiver under federal law or the law of the State where the disclosure occurred.

(d) Controlling Effect of a Court Order. A Commonwealth 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 Commonwealth, federal, or state proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a Commonwealth 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 Commonwealth proceedings and to court-mandated arbitration and mediation proceedings, in the circumstances set out in the rule.

(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."