Rule 502 Attorney-Client Privilege and Work Product; Limitations on Waiver
Rule Text
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, as provided in 5 V.I.C. § 852, V.I. Rule of Evidence 503, and V.I. Rule of Civil Procedure 26(b)(3).
(a) Waiver of privilege by voluntary disclosure. As provided in 5 V.I.C. § 861, a person upon whom a Virgin Islands statute confers a privilege against disclosure waives the privilege if the person or a predecessor of the person, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This section does not apply if the disclosure itself is privileged.
(b) Privileged matter disclosed under compulsion or without opportunity to claim privilege. As provided in 5 V.I.C. § 862, a claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.
(c) Scope of Intentional Waiver by Disclosure Made in a Virgin Islands or Federal Proceeding or to a Virgin Islands or Federal Governmental Office or Agency. When the disclosure is made in a Virgin Islands or federal proceeding or to a Virgin Islands or federal governmental office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Virgin Islands, 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.
(d) Inadvertent Disclosure. When made in a Virgin Islands or federal proceeding or to a Virgin Islands or federal governmental office or agency, a disclosure does not operate as a waiver of privilege or work product protections in a Virgin Islands, 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 Virgin Islands Rule of Civil Procedure 26(b)(5)(B).
(e) Disclosure Made in a State Proceeding. When a 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 Virgin Islands proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a Virgin Islands proceeding; or
(2) is not a waiver under the law of the State where the disclosure occurred.
(f) Controlling Effect of a Court Order. A Virgin Islands or 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 Virgin Islands, federal or state proceeding.
(g) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a Virgin Islands or federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(h) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to proceedings in the Virgin Islands and to court-mandated arbitration proceedings, in the circumstances set out in the rule.
(i) 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."
other jurisdictions because of the concerns over document production errors in "heavy discovery" cases and the possibility of inadvertent disclosure of paper and electronic records. Provisions of existing Virgin Islands privilege-waiver statutes are incorporated at the outset of this Rule.
ARTICLE VI WITNESSES