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Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 15 of 40 LEGAL STANDARDS FOR WAIVER A. Federal Rule of Evidence 502 Controls on the Issue of Waiver Defendant asks this Court to find that Ms. Giuffre has somehow waived her attorney- client privilege regarding various communications in this case. This is no small step. The attorney-client privilege is one of the “oldest recognized privileges for confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998)). The privilege’s purpose is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” 524 U.S. at 403 (internal quotation marks omitted). In setting out the legal standards pertaining to waiver of attorney-client privilege, Defendant fails to cite the controlling — and protective — law on the issue. In a federal case, issues of alleged waiver of attorney-client privilege must be resolved under the new standards in Federal Rule of Evidence 502. In 2008, Congress enacted Federal Rule of Evidence 502, which is entitled “Attorney-Client Privilege and Work Product; Limitations on Waiver.” New rule 502 places a number of protections in place to reduce litigation over claims that a party has somehow “waived” attorney client privilege. See generally Adv. Comm. Note, Rule 502. Notably, Defendant does not discuss, or even cite, Rule 502 in her motion. The issue currently before the Court is specifically controlled by Rule 502(c), which covers situations where a disclosure in a state proceeding is alleged, in a federal proceeding, to establish waiver. Rule 502(c) provides the greater of protections found in federal or state law: (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred.