TITLE FIVE — PRIVILEGES AND DISQUALIFICATION
Rule 509. Waiver of Privilege
Who Can Waive. A privilege holder or his or her administrator, or executor can waive the privilege. Where the holder is an organization, the privilege is waived only by the person or body having control of it under Rule 503(d). An attorney or other agent may waive a privilege only with the authority of the holder, express or implied, and the party asserting a waiver by an agent bears the burden of establishing that authority.
Conduct Constituting Waiver. A privilege is waived if the person upon whom this Rule confers a privilege against disclosure:
voluntarily discloses or consents to disclosure of any significant part of the privileged matter,
introduces privileged communications as an element of a claim or defense,
asserts a claim or a defense that places the privileged matter itself in issue, including a defense of reliance upon the advice of counsel, a claim or defense of good faith founded upon legal advice received, a claim of ineffective assistance of counsel, a claim against an attorney for a breach of duty, and a claim that a period of limitation was tolled by advice received,
calls the attorney, or another person within the privilege, as a witness upon the subject of the privileged matter,
fails to assert the privilege within the time and in the manner Rule 501(f) and Rule 501(g) require, including a failure to describe the withheld matter in a log served under Rid. R. Civ. P. 19(6)(a), or
fails to object when the privileged matter is offered in evidence, as Rule 103(a) requires.
Subject-Matter Waiver; Scope of a Waiver.
A waiver extends to the matter actually disclosed. It extends further, to an undisclosed communication or item upon the same subject matter, only where the disclosure was intentional and the disclosed and the undisclosed matter ought in fairness to be considered together, the principle stated in Rule 106 being applied.
A waiver does not extend to matter of a different subject, to a different privilege, or to a different relationship, and does not extend to opinion work product protected by Rule 504(c) except so far as that matter was itself disclosed to an adversary.
A waiver under Rule 509(b)(3) extends to communications concerning the advice relied upon and to communications bearing upon the party’s state of mind as to that advice, and is confined to the period during which the party claims to have relied.
A party may avoid a waiver under Rule 509(b)(3) by withdrawing the claim or defense before the matter is heard. The court may condition the withdrawal upon terms, including the preclusion of evidence of the advice and of any reliance upon it.
The court shall define the scope of a waiver by order and shall state it upon the record, identifying the subject matter to which the waiver extends and the period it covers. In defining the scope the court shall not extend the waiver further than the fairness of the proceeding requires.
Conduct Not Constituting Waiver. A person upon whom this Rule confers a privilege against disclosure does not waive the privilege if:
the person merely testifies as to events which were a topic of a privileged communication,
there is an unintentional disclosure of a privileged communication and reasonable precautions were taken to prevent the disclosure,
the disclosure is made to a person within the privilege under Rule 503(b), to a person with whom the holder shares a common legal interest under Rule 503(e)(4), or to an agent or consultant engaged to assist in the representation or the litigation,
the disclosure is compelled by an order of the court over a claim of privilege duly made and preserved, whether or not the order is later held erroneous,
the matter is produced to the court for examination in camera under Rule 501(i),
the matter is produced pursuant to an agreement among the parties, approved by the court under Rid. R. Civ. P. 22, providing that production shall not operate as a waiver, in which case the agreement binds the parties to it and, when the court so orders, every party to the action, or
the disclosure is of the fact that a communication occurred, or of a matter outside the privilege under Rule 503(h).
Inadvertent Disclosure.
A disclosure is inadvertent, and does not waive the privilege, where the holder establishes that the disclosure was unintended, that the holder took reasonable steps to prevent it, and that the holder promptly took reasonable steps to rectify it, including the giving of notice under Rule 503(j) and Rid. R. Civ. P. 19(6)(b).
In determining whether the steps taken were reasonable the court shall consider the volume of the production, the time allowed for it, the procedure employed to review it, the means by which the matter was transmitted, and the promptness of the notice, measured in hours from the moment the holder learned of the disclosure.
Where the disclosure consists in the transmission of privileged matter to the electronic filing system and its acceptance, the matter cannot be removed, sealed, or redacted. The holder shall proceed under Rule 501(j)(4). The fact that the matter remains upon the record does not of itself establish a waiver, but the court shall consider, in determining the scope of any waiver, the extent to which the matter has become publicly available and the extent to which the harm is irremediable.
Where a rejected or pending filing contained privileged matter, no waiver results from the transmission, the electronic filing system withholding such a filing and its documents from every person who is not a participant in the case or an officer of the court, as Rid. R. Civ. P. 5.3(15) provides.
Disclosure to a Governmental Authority.
A disclosure of privileged matter to the Attorney General, to a state attorney, to a peace officer, to the State Bureau of Investigation, to the State Auditor, to a legislative committee, or to any other governmental authority conducting an investigation is a disclosure to a person outside the privilege and waives the privilege as to the matter disclosed.
There is no selective waiver. A disclosure to a governmental authority is effective as a waiver against every person, and an agreement with the authority purporting to preserve the privilege as against others binds no person who is not a party to that agreement.
A disclosure compelled by a lawful subpoena, made after the claim of privilege has been presented to the court and overruled, is not a waiver, as Rule 509(d)(4) provides. Before the State Auditor, a claim of privilege shall be presented to the court for in camera review as 2 R. Stat. § 512.008 requires, and compliance after the claim is overruled works no waiver in any other proceeding.
A cooperation agreement within Rule 1102, a proffer, and an interview given in the hope of leniency are disclosures within Rule 509(f)(1) so far as privileged matter is disclosed in them.
Nothing in this subdivision requires the disclosure of matter that 2 R. Stat. § 512.106 protects from compelled release.
Waiver of the Privilege Against Self-Incrimination. The waiver of the privilege against self-incrimination is governed by Rule 505(c)(1) through Rule 505(c)(3), and, as those provisions state, is limited to the proceeding in which the testimony is given.
Burden; Effect. The party asserting a waiver bears the burden of establishing it by a preponderance of the evidence. A privilege once waived as to a matter may not be reasserted as to that matter in the same proceeding, and, except as Rule 505(c)(3) otherwise provides, may not be reasserted as to that matter in a subsequent proceeding.