Today, the Illinois Supreme Court adopted Rule 502 of the Illinois Rules of Evidence, governing the circumstances in which disclosure of protected materials in a legal proceeding, or before a state or federal office or agency, affects a more general waiver of the attorney-client or work product privilege.
The new state Rule 502 tracks Federal Rule 502 almost word for word: (1) when disclosure happens in a state proceeding, or before a state office or agency, the scope of waiver is decided case-by-case; (2) when disclosure is inadvertent, a general waiver may be avoided by quick and reasonable mitigating steps; and (3) disclosure in a Federal proceeding, another state’s proceeding, or before a Federal or other state’s proceeding is waiver only if it would not qualify as waiver under either Illinois law or the law of the jurisdiction where the disclosure happened.
But here’s the interesting part. The new Rule 502 became an issue in Center Partners, Ltd. v. Growth Head GP, LLC, which will settle the breadth of waiver in a non-litigation case where business partners shared their attorneys’ advice with each other while negotiating a business deal. Center Partners will be released tomorrow morning. Perhaps the adoption of Rule 502 today suggests how the Court will rule in Center Partners tomorrow.