In Lott v. Tradesmen International, Inc., No. 09-CV-183 (E.D. Ky. Jan. 25, 2013), the court held that plaintiff’s production of privileged emails did not result in waiver beyond the emails themselves. On the eve of trial, and long after discovery had closed, plaintiff produced email communications which disclosed plaintiff’s emails to counsel, but which redacted counsel’s emails to plaintiff. Defendant argued that plaintiff’s disclosures resulted in subject matter waiver, but the court disagreed. Federal Rule of Evidence 502(a) provides that disclosure of additional, undisclosed privileged material is required only where: (1) the disclosure was voluntary; (2) the undisclosed communications relate to the same subject matter; and (3) “fairness” requires additional disclosures. The court stated: “’[I]n fairness,’ nothing else should be considered, because the emails in question will not be admitted into evidence and will not be considered by the Court,” therefore there would be no “selective and misleading presentation of evidence to the disadvantage of the adversary.”