Failing to Keep the Cat in the Bag: A Decennial Assessment of Federal Rule of Evidence 502's Impact on Forfeiture of Legal Privilege Under Customary Waiver Doctrine
Federal Rule of Evidence 502—providing certain exemptions from the surrender of attorney-client and work product privilege because a confidential item was disclosed—had great expectations to live up to after its enactment in 2008, as Congress and others heralded it as a panacea to litigation’s woes in the face of bourgeoning discovery. The enacted rule was the subject of much skepticism by the academic punditocracy, however. Ten years later, this Article surveys the actual results and finds that, regrettably, pessimism has proven the better prediction. Percolation of debate over the rule’s many ambiguities and courts’ disparate approaches have not resolved initial critiques, but only diversified their targets and fostered new bubbles of confusion, conflict, and consternation. That said, FRE 502 has indeed improved some aspects of the state of the law of privilege—and may do more as consensus matures—but has still left jurisprudence well short of the ideals dreamt of under its framers’ vision. Nonetheless, the game is worth the candle: The pursuit of a more perfect privilege vindicates the essential individual rights of Lockean society, and the ongoing quest thus reflects that of civilization itself.
Jared S. Sunshine,
Failing to Keep the Cat in the Bag: A Decennial Assessment of Federal Rule of Evidence 502's Impact on Forfeiture of Legal Privilege Under Customary Waiver Doctrine,
68 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol68/iss4/5