Rule 502 - Attorney-Client Privilege and Work Product; Limitations on WaiverThe 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 State Court Proceeding; Scope of a Waiver. When the disclosure is made in a state court proceeding and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a state court 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. (b) Inadvertent Disclosure. When made in a state court proceeding, the disclosure does not operate as a waiver 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 Minnesota Rule of Civil Procedure 26.02(f)(2). (c) Controlling Effect of a Court Order. A state 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 state court proceeding. (d) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a state proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (e) 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.Adopted November 16, 2018, effective 1/1/2019.Committee Comment - 2018
Rule 502 is modeled closely on Fed. R. Evid. 502. Consistent with Minn. Stat. § 595.02, subd. 1(b), and § 480.0591, subd. 6(1) and (5), this rule is not meant to alter Minnesota law, but to clarify it. In its note to the federal rule, the Supreme Court Advisory Committee explained:
The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant to a confidentiality order, the court's order will be enforceable....
The rule makes no attempt to alter federal or state law on whether a communication or information is protected under the attorney-client privilege or work-product immunity as an initial matter. Moreover, while establishing some exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine generally.