Survey of Illinois Law: Waiver of the Attorney-Client Privilege and Work Product Protection, 37 S. Ill. U. L.J. 825 (2013)

Effective January 1, 2013, two new Illinois Supreme Court rules clarify and limit the waiver of the attorney-client privilege and work product protection rule. Illinois Rule of Evidence 502 ( IRE 502 ), which spells out the limitations on waiver, is accompanied by a clawback provision in Illinois Supreme Court Rule 201(p) ( Rule 201(p) ) that details the procedural steps a disclosing party should take to successfully assert the privilege following an inadvertent discovery disclosure. Additionally, these changes clarify the mandatory duty of the receiving party. IRE 502 was modeled on Federal Rule of Evidence 502 ( FRE 502 ) and Rule 201(p) was modeled on Federal Rule of Civil Procedure 26(b)(5)(B). Both rules represent a clarification of, and in certain instances, a departure from Illinois common law. This survey article provides a detailed summary of these recent changes in Illinois