Rule 510. ?MiscellaneousMatters.
(a) Waiver of Privilege.
(a)(1) voluntarily disclosesor consents to the disclosure of any significant part of the matter orcommunication, or
(c) Comment or Inference Not Permitted. The claim of privilege, whether in the present proceeding orupon a prior occasion, is not a proper subject of comment by judge or counsel.No inference may be drawn from any claim of privilege.
(d) Claiming Privilege Without the Jury?s Knowledge.
(e) Jury Instruction. Uponrequest, any party against whom the jury might draw an adverse inference fromthe claim of privilege is entitled to a jury instruction that no inference maybe drawn from that claim of privilege.
(f) Privilege Against Self-Incrimination in Civil Cases.
2011 Advisory Committee Note.
ProposedFederal Rule 511 became Rule 510(a), replacing Rule 37. Proposed Federal Rule512 became Rule 510(b), replacing Rule 38. Proposed Federal Rule 513 becameRule 510(c), replacing Rule 39. No replacement was adopted for Rule 40 sincethe Committee determined that the subject matter of that rule need not becovered by a rule of evidence.
Subparagraph (a). Since the purpose of evidentiary privileges is the protection ofsome societal interest or confidential relationship, the privilege should endwhen the purpose is no longer served because the holder of the privilege hasallowed disclosure or made disclosure. For the same reason, although Rule 37required a knowing waiver of the privilege, Rule 510(a) as drafted does notrequire such knowledge. A stranger to the communication may testify to anotherwise privileged communication, if the participants have failed to takereasonable precautions to preserve privacy.
Subparagraph(b). Once disclosure of privileged matter has occurred, although confidentialitycannot be restored, the purpose of the privilege may still be served in someinstances by preventing use of the evidence against the holder of theprivilege. For that reason, privileged matter may still be excluded when thedisclosure was not voluntary or was made without an opportunity to claim theprivilege.
(1)Allowing inferences to be drawn from the invocation of a privilege mightundermine the interest or relationship the privilege was designed to protect.
(2) Forthe same reason, the invocation of a privilege should not be revealed to thejury. Doing so might also result in unwarranted emphasis on the exclusion ofthe privileged matter.
(3)Whether to seek an instruction is left to the judgment of counsel for the partyagainst whom the inference might be drawn. If requested, such an instruction isa matter of right.
(4) Theprovisions of subparagraph (c)(4) are not intended to alter the common lawrules as to inferences that may be drawn or as to when a party may comment orbe entitled to a jury instruction when the privilege has been invoked.