Rule 502 offers novel and expansive protections for litigants in federal court, but when applied in the course of a federal investigation, its regulations concerning privilege waiver offer little peace of mind. Part 1 covered issues with the Rule, and today’s follow-up delves into protections against subject matter waiver and tips to employ the Rule effectively.

The fear of inadvertent waiver of attorney-client privilege or attorney work product in large-scale document productions has long kept defense counsel on edge. While amendments to the Federal Rules of Evidence have armed litigants with some novel (if underused) defenses against inadvertent privilege waiver, a party facing a government investigation, unfortunately, may not always enjoy such protections.