Del. R. Evid. 510

As amended through December 15, 2023

Rule 510 - Waiver of privilege or work product; limitations on waiver

The following provisions apply, in the circumstances set out, to disclosure of information or communications that are privileged under these rules or that are subject to work-product protection.

(a)Waiver by intentional disclosure. A person waives a privilege conferred by these rules or work-product protection if such person or such person's predecessor while holder of the privilege or while entitled to work-product protection intentionally discloses or consents to disclosure of any significant part of the privileged or protected communication or information. This rule does not apply if the disclosure itself is privileged or protected.

(b)Disclosure; scope of a waiver. When the disclosure waives a privilege conferred by these rules or work-product protection, the waiver extends to an undisclosed communication or information 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.

(c)Inadvertent disclosure. A 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 following any applicable court procedures to notify the opposing party or to retrieve or request destruction of the information disclosed.

(d)Disclosure Made in a Non-Delaware Proceeding. Notwithstanding anything in these rules to the contrary, a disclosure made in a non-Delaware proceeding does not operate as a waiver if the disclosure is not a waiver under the law of the jurisdiction where the disclosure occurred.

(e)Disclosure to a Law Enforcement Agency. Notwithstanding anything in these rules to the contrary, a disclosure made to a law enforcement agency pursuant to a confidentiality agreement does not operate as a waiver of an existing privilege.

(f)Controlling Effect of a Court Order. Notwithstanding anything in these rules to the contrary, a 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 proceeding.

(g)Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(h)Definition. In this rule:

(1) "work-product protection" means the protection that applicable law provides for documents and tangible things (or their intangible equivalents) prepared in anticipation of litigation or for trial.

Del. R. Evid. 510

Amended November 28, 2017, effective 1/1/2018.

Comment

The revisions to D.R.E. 510 are based on F.R.E. 502, which rule has been the subject of almost 200 law review articles. At least 30 articles are comprehensive discussions of the rule and post-enactment judicial use of the rule. This proliferation of learned journal commentary on inadvertent disclosure of privileged communications parallels the exponential increase in e-discovery requests and responses in major cases. F.R.E. 502 takes a "middle ground" position on inadvertent disclosure, requiring an inquiry into the means taken by counsel to identify and protect privileged communications, unless the parties agree on a different protocol for dealing with inadvertent disclosure. The revised D.R.E. 510 contains similar protection against the admission or use of inadvertently disclosed privileged or protected communications to ensure the integrity of the litigation process in Delaware.

D.R.E. 510 conforms to the federal rule in terms of handling inadvertent disclosure. A leading case interpreting F.R.E. 502 is Rhoads Industries, Inc. v.

Building Materials Corp., 254 F.R.D. 216 (E.D. Pa. 2008 ). At least one Delaware decision deals with claims of waiver of attorney-client privilege through inadvertent disclosure and contains the following discussion:

An inadvertent disclosure of privileged communications will not necessarily operate to waive the attorney-client privilege. In order to determine whether the inadvertently disclosed documents have lost their privileged status, the Court must consider the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery and extent of disclosure; and (4) the overall fairness, judged against the care or negligence with which the privilege is guarded.

In re Kent County Adequate Public Facilities Ordinances Litigation, 2008 Del. Ch. LEXIS 48, at *24 (Apr. 19, 2008) (Noble, V.C.) (citations omitted). The factors set forth in these decisions are not explicitly codified in D.R.E. 510, as they constitute non-determinative guidelines that may vary from case to case.

As in F.R.E. 502, new D.R.E. 510 also clarifies that when a voluntary disclosure constitutes a waiver of attorney-client privilege as to a communication or information, the scope of the waiver is generally limited to the privileged communication or information disclosed. The rule does not disturb existing Delaware law regarding the scope of waiver of work-product protection by voluntary disclosure. See Rollins Properties, Inc. v. CRS Sirrine, Inc., 1989 WL 158471 (Del. Super. Dec. 13, 1989 ).

The rule governs only certain waivers by disclosure and is not intended to alter existing law with respect to waiver of privilege or work product protection by other means. See, e.g., Baxter Int'l, Inc. v. Rhone-Poulenc Rorer, Inc., 2004 WL 2158051 (Del. Ch. Sept. 17, 2004 ) (discussing "at issue" exception to attorney-client privilege as form of waiver "where the issue was lack of good faith" (citation omitted)).

Subsection 510(e) codifies the ruling by Chancellor Chandler in Saito v. McKesson HBOC, Inc., Civ. A. 18553, 2002 WL 31657622 (Del. Ch. Nov. 13, 2002 ). Saito involved the question of whether the defendant waived its work-product protection as to the documents at issue by sharing them with the SEC in an investigation.

Subsection 510(f) contains the introductory clause, "[n]otwithstanding anything in these rules to the contrary," in part so that a court may allow the parties in a matter to agree to quick-peek arrangements without pre-production privilege review. Otherwise, the parties to such an arrangement may be deemed to have waived a privilege pursuant to subsection 510(a).