Section 523. Waiver of Privilege
(a) Who Can Waive. A privilege holder or his or her legally appointed guardian, administrator, executor, or heirs can waive the privilege.
(b) Conduct Constituting Waiver. Except as provided in Section 524, Privileged Matter Disclosed Erroneously or Without Opportunity to Claim Privilege, a privilege is waived if the person upon whom this Article confers a privilege against disclosure
(1) voluntarily discloses or consents to disclosure of any significant part of the privileged matter or
(2) introduces privileged communications as an element of a claim or defense.
(c) Conduct Not Constituting Waiver. A person upon whom this Article confers a privilege against disclosure does not waive the privilege if
(1) the person merely testifies as to events which were a topic of a privileged communication, or
(2) there is an unintentional disclosure of a privileged communication and reasonable precautions were taken to prevent the disclosure.
NOTE
Subsection (a). This subsection is derived from Phillips v. Chase, 201 Mass. 444, 449, 87 N.E. 755, 757–758 (1909), and District Attorney for the Norfolk Dist. v. Magraw, 417 Mass. 169, 173–174, 628 N.E.2d 24, 26–27 (1994).
Subsection (b)(1). This subsection is derived from Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 423 n.4, 681 N.E.2d 838, 841 n.4 (1997), where the Supreme Judicial Court noted that Proposed Mass. R. Evid. 510 was consistent with the views of the court.
Subsection (b)(2). This subsection is derived from the concept of an “at issue” waiver which the Supreme Judicial Court recognized in Darius v. City of Boston, 433 Mass. 274, 284, 741 N.E.2d 52, 59 (2001). An “at issue” waiver is not a blanket waiver of the privilege, but rather “a limited waiver of the privilege with respect to what has been put ‘at issue.’” Id. at 283, 741 N.E.2d at 58. See, e.g., Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 818–820, 927 N.E.2d 480, 488–490 (2010) (determining that a limited at-issue waiver of the plaintiff’s attorney-client privilege occurred because its claim for consequential damages was based in part on the advice it received from its attorney in the underlying action). Accord Commonwealth v. Brito, 390 Mass. 112, 119, 453 N.E.2d 1217, 1221 (1983) (“Once such a charge [of ineffectiveness of counsel] is made, the attorney-client privilege may be treated as waived at least in part, but trial counsel’s obligation may continue to preserve confidences whose disclosure is not relevant to the defense of the charge of his ineffectiveness as counsel.”). In addition, the party seeking to invoke the doctrine of an “at issue” waiver must establish that the privileged information is not available from any other source. Darius v. City of Boston, 433 Mass. at 284, 741 N.E.2d at 59.
Subsection (c)(1). This subsection is derived from Commonwealth v. Goldman, 395 Mass. 495, 499–500, 480 N.E.2d 1023, 1027, cert. denied, 474 U.S. 906 (1985). Though a witness does not waive the privilege merely by testifying as to events which were a topic of a privileged communication, a waiver occurs when the witness testifies as to the specific content of an identified privileged communication. Id. In Commonwealth v. Goldman, the Supreme Judicial Court specifically left open the question whether in a criminal case the rule embodied in this subsection would have to yield to the defendant’s constitutional right of confrontation. Id. at 502 n.8, 480 N.E.2d at 1028 n.8. See also Commonwealth v. Neumyer, 432 Mass. 23, 29, 731 N.E.2d 1053, 1058 (2000) (waiver of sexual assault counselor privilege); Commonwealth v. Clancy, 402 Mass. 664, 668–669, 524 N.E.2d 395, 397–398 (1988) (waiver of patient-psychotherapist privilege).
Subsection (c)(2). This subsection is derived from Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. (Bermuda), 425 Mass. 419, 422–423, 681 N.E.2d 838, 841–842 (1997). See also Adoption of Sherry, 435 Mass. 331, 336, 757 N.E.2d 1097, 1102 (2001).
Rule 502 of the Federal Rules of Evidence, Waivers in Federal Proceedings. On September 19, 2008, Rule 502 of the Federal Rules of Evidence was enacted. See Pub. L. 110-322, 110th Cong., 2nd Sess. The rule is applicable “in all proceedings commenced after the date of enactment . . . and, insofar as is just and practicable, in all proceedings pending” on that date. The rule was developed in response to concerns about the rising cost of discovery, especially electronic discovery, in Federal proceedings in which among the thousands or hundreds of thousands of documents that are produced by a party in response to a discovery request, the producing party may inadvertently include one or a handful of documents that are covered by the attorney-client privilege or the work-product protection. Prior to the adoption of this rule, there was no uniform national standard governing the determination of when such a mistake would lead to a ruling that the privilege or protection had been waived. As a result, a party was forced to examine each and every document produced in discovery in order to avoid the risk of an inadvertent waiver.
Rule 502 of the Federal Rules of Evidence does not alter the law that governs whether a document is subject to the attorney-client privilege or the work-product protection in the first instance. Under Fed. R. Evid. 501, unless State law, the Federal Constitution, or a Federal statute controls, the existence of a privilege in federal proceedings “shall be governed by the principles of the common law.” However, Fed. R. Evid. 502 does establish a single national standard that protects parties against a determination by a Federal court, a Federal agency, a State court, or a State agency that an inadvertent disclosure of privileged or protected material constitutes a wholesale waiver of the privilege or protection as to other material that has not been disclosed.
Rule 502(a) of the Federal Rules of Evidence addresses when a waiver of either the attorney-client privilege or the work-product protection extends to undisclosed material. It provides that a waiver of the privilege or protection does not extend to undisclosed material unless (1) the waiver is intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) both the disclosed and undisclosed material should in fairness be considered together. Rule 502(b) of the Federal Rules of Evidence addresses inadvertent disclosures. It is similar to Section 523(c)(2), Waiver of Privilege: Conduct Not Constituting Waiver, except that the Federal rule requires that to avoid a waiver the holder of the privilege must promptly take reasonable steps to rectify the erroneous disclosure. Fed. R. Evid. 502(b)(3). Rule 502(c) of the Federal Rules of Evidence provides that disclosures made in State court proceedings will not operate as a waiver in Federal proceedings so long as the disclosure is not regarded as a waiver under either Fed. R. Evid. 502(a) or 502(b), or the law of the State where the disclosure occurred. Rule 502(d) of the Federal Rules of Evidence provides that a Federal court order that the privilege or the protection is not waived by a disclosure is binding on both Federal and State courts. Rule 502(e) of the Federal Rules of Evidence provides that an agreement on the effect of the disclosure between the parties in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. Rule 502(f) of the Federal Rules of Evidence expressly makes the rule applicable to State and Federal proceedings, “even if State law provides the rule of decision.” Rule 502(g) of the Federal Rules of Evidence contains definitions of the terms “attorney-client privilege” and “work-product protection.”
