(a) Voluntary disclosure. A person upon whom these rules confer a privilege against disclosure waives the privilege if the person or the person's 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)(5)(B) applies.
(b) Involuntary disclosure. A claim of privilege is not waived by a disclosure that was compelled erroneously or made without an opportunity to claim the privilege.
Subdivision (a) 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.
Subdivision (a) 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.
Under subdivision (a), a voluntary disclosure of privileged material operates as a waiver of a given privilege. Subdivision (b) provides for a contrary result whenever the disclosure is erroneously compelled or is made without opportunity by the holder to claim the privilege.
Subdivision (b) will most often operate as a rule of exclusion, i.e., it will render inadmissible evidence of the prior disclosure in a civil or criminal action to which the holder of the privilege is a party. But, the rule does more than prohibit the use of such evidence against the holder of the privilege, it provides that the privilege shall remain intact, to be treated as originally granted. Thus, the holder, as a witness, may claim the privilege, in an action to which he is not a party. Cf. The proposed Federal Rule 512, Deleted and Superseded Materials, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).
The need for a protective rule of this type is clear with respect to disclosures erroneously compelled. Whether the compulsion is judicial or comes from some other authority, the rules of privilege should not be left open to circumvention by their very breach.
The second basis for exclusion is meant to deal with those instances in which disclosure is made by someone other than the holder of the privilege. This would include disclosure by a recipient of privileged information (e.g. a lawyer), one allowed to transmit privileged information (e.g., a lawyer's representative), or an eavesdropper, among others.
It may be argued that once disclosure by a third party is made, the need for confidentiality ceases and, therefore, the privilege should not be maintained. However, with the increasing number and sophistication of intrusions into individual privacy, it is necessary to guard jealously those confidential communications deemed of such social importance as to warrant being privileged. This provision will maximize the effect of a given privilege, although, as may be argued, it cannot totally repair a breach of confidentiality.
Rule 510 was amended, effective March 1, 2014, to follow the 1999 amendments to Uniform Rule of Evidence 510. The amendments incorporate the content of former Rule 511 so that both the voluntary and involuntary waiver of a privilege can be addressed in one comprehensive rule. In addition, gender specific language is replaced by the neutral term "person." The term "person" includes individual human beings and also public officers, corporations, associations, and other organizations and entities, public and private. The amendments to the rule's terminology are not intended to change any result in any ruling on evidence admissibility.
SUPERSEDED: N.D.C.C. § 31-01-07.