In 2008, Federal Rule of Evidence 502(d) was signed and enacted into law by Congress to minimize the cost of civil litigation, particularly in matters with large volumes of ESI. The intent of the rule is to allow parties to produce large volumes of documents while reducing the risk of waiving privilege in a federal proceeding. The rule states:
Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.
Rule 502(d) gives heightened protection against waiver in instances where privileged information is both knowingly and/or unknowingly disclosed. In the case of the latter, the rule eliminates the need to demonstrate that the disclosing party took reasonable steps to prevent the disclosure, which is part of the requirements of Rule 502(b) under its “inadvertent production” standard. Accordingly, 502(d) eliminates costly and time-consuming potential motion practice regarding waivers of privilege where the issue of whether the production was inadvertent is disputed. Moreover, that protection carries over to any other proceeding in federal or state court even with different parties. Litigants should consider it a safety net protecting against waiver of privilege.
FRE 502(d) is not often used
Despite the inherent strengths of Rule 502(d), most litigants continue to ignore it. U.S. Magistrate Judge Andrew Peck posits that perhaps the most obvious explanation for Rule 502(d)’s infrequent use is that lawyers simply aren’t aware of its provisions (see Judge Peck’s recent insights on 502(d)).
Alternatively, what might be causing some reticence among attorneys is a concern that pursuing a 502(d) order could give the court a green light to require a massive document production without conducting a thorough privilege review. Litigants, however, can protect themselves from such a scenario by crafting language within the order that outlines the scope of the privilege review and associated rights of the parties.
To address the aforementioned concerns, Judge Peck provides a simple model on his website that can be tailored to suit your specific matter:
- The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).
- Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.
Even in the unlikely event that a court compels a party to produce documents without conducting a careful privilege review, Judge Peck is of the opinion that it would be improper to do so, stating that a court should not infringe upon attorneys’ rights to protect their clients’ privileged documents for the sake of speed or cost.
Quick considerations when drafting a 502(d) order
1. Avoid confusion regarding what 502 standard should be applied.
Rule 502(b) requires an analysis that the producing party took reasonable steps to prevent disclosure — a standard not required by Rule 502(d). Given that, parties should draft language explicitly stating that an analysis considering Rule 502(b) is inapplicable (see paragraph 1 of Judge Peck’s model).
2. Be careful with the use of the term “inadvertent.”
In fact, avoid the use of the term “inadvertent” entirely. Use of the term only clouds the intent of the 502(d) order and puts the parties at risk of disputing what the term actually means.
Litigants should refer to the unconditional claw-back language of Rule 502(d). The point of drafting a 502(d) order is to avoid a Rule 502(b) “reasonable steps” analysis and to prevent prolonged and costly disputes regarding waiver of privilege.
3. 502(d) provides insurance even with purposeful disclosure.
Parties may wish to purposefully disclose privileged documents or data in a current proceeding, but may be concerned about a waiver or privilege in a future proceeding. The protection of a Rule 502(d) can carry over to any other proceeding in federal or state court with different parties, thus protecting parties even where there was a purposeful disclosure of privileged documents.
Consider using a Rule 502(d) order. It is an incredibly useful tool to protect against waiver in instances where privileged information is both knowingly and/or unknowingly disclosed.
The U.S. Supreme Court recently heard oral arguments in U.S. v. Microsoft, tackling the question of whether an organization can refuse to disclose foreign-stored data sought by the U.S. government through domestic warrants. Currently, the Second Circuit says yes while other circuits tend to say no.
Amendments to Federal Rules of Evidence 803 and 902
Discovery is not about gamesmanship, and parties are expected to engage in meaningful negotiation about the terms of discovery agreements. That is the message from Judge A. Kathleen Tomlinson of the Eastern District of New York, who recently ordered cost shifting when parties failed to meaningfully meet and confer about their electronically stored information (ESI) agreement. The decision is remarkable, because it orders cost shifting in a case where there is no claim that the discovery sought is unreasonable in scope or unnecessary to resolve the claims in the dispute. The court did not analyze and weigh the proportionality factors in 
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