RULE 510. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
A person upon whom a privilege against disclosure is conferred by rule or by law waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged or if N.D.R.Civ.P. 26 (b)(6)(B) applies.
Rule 510 was amended, effective March 1, 2008.
This rule merely states in express terms that which is inherent in the preceding rules of privilege.
The rules of privilege are designed to foster certain relationships or policies that are deemed important to our society. The rules seek to accomplish this end by enveloping selected communications with the necessary degree of confidentiality.
If the holder of a privilege voluntarily discloses that which is privileged, there remains no theoretical or practical basis for maintaining the privilege and thereby depriving the judicial system of what may be relevant evidence. The privilege, however, is not to be revoked automatically following any disclosure, however peripheral to the substance of the communications being protected. The disclosure must be of a "significant part of the privileged matter." The determination of what is significant must be made with a common sense approach. If the substance of the privileged material is disclosed, the privilege should be revoked. Otherwise, it should remain intact.
Rule 510 was amended, effective March 1, 2008, to recognize that N.D.R.Civ.P. 26(b)(2)(B)'s safe harbor provision protects claims of privilege under some circumstances when information is voluntarily produced in the course of discovery.
Sources: Joint Procedure Committee Minutes
: of January 25, 2007,
pages 9-10; January 29,
1976, page 11. Rule 510, Uniform Rules of Evidence (1974).
Superseded: N.D.C.C. § 31-01-07.