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 other information covered by the attorney-client privilege or work-product protection.
(A) Disclosure made in an Ohio proceeding or to an Ohio office or agency; Scope of waiver. When a disclosure is made in an Ohio proceeding or to an office or agency of an Ohio state, county, or local government that waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any 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 an Ohio proceeding or to an office or agency of an Ohio state, county, or local government, the disclosure does not operate as a waiver in any proceeding 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 Ohio Civ.R. 26(B)(8)(b).(C) Disclosure Made in Another Jurisdiction. When the disclosure is made in a proceeding in a federal court or the court of another state and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in an Ohio proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in an Ohio proceeding; or(2) is not a waiver under the law governing the state or federal proceeding where the disclosure occurred.(D) Controlling Effect of a Court Order. An Ohio 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.(E) Controlling effect of a party agreement. An agreement on the effect of a disclosure in an Ohio proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.(F) 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. Effective:7/1/1980; Adopted April 26, 2022, effective 7/1/2022.Staff Note (July 1, 2022)
Rule 502 is modeled closely on Fed.R.Evid. 502 adopted by Congress in 2008, and comparable provisions adopted in other states. It seeks to harmonize practice across jurisdictions, particularly in dealing with electronically stored information.
The rule does not alter state or federal law on whether a communication or information is protected under attorney-client privilege or work-product immunity as an initial matter. Ohio previously adopted a "claw-back" provision in Civ.R. 26(B)(8)(b), but that rule does not control whether disclosure constitutes a waiver in that or another proceeding. This rule fills the gap, providing a predictable and uniform set of standards under which parties can determine the consequences of disclosure.