Attorney-Client Privilege and Work Product; Limitations on Waiver

The 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 Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. 23 EVIDENCE MINNESOTA COURT RULES 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. (Added effective January 1, 2019.) Committee Comment - 2018