KMK Law Complex Litigation Blog

In today’s increasingly data-driven world, compliance with discovery requirements can mean production of hundreds of thousands of pages of documents, if not millions. Federal Rule of Evidence 502(d) was enacted to reduce the costs and risks associated with discovery, and to allow a federal court to protect the privilege of documents that have been inadvertently disclosed. Federal Rule of Evidence 502(d) provides that “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.”

Used properly, Rule 502(d) can be a valuable asset in protecting the attorney client and attorney work product privilege through the discovery process. The Rule 502(d) order can help alleviate some of the uncertainty relating to the inadvertent disclosure analysis under the general rule of Rule 502(b). Unlike Rule 502(b), protections under 502(d) need not depend on whether disclosure was inadvertent.1 Rule 502(d) also expressly prevents waiver in other federal and state court proceedings, and is available to and binding on non-parties, such as subpoena respondents.

Despite the benefits of a Rule 502(d) order, many practitioners and judges have not taken advantage of those benefits. Inconsistent application of the rule may be partially to blame. For example, although Rule 502(d) does not expressly require parties to take “reasonable” steps to protect documents (as compared to Rule 502(b)), some courts have analyzed the care taken in producing documents.2 Some practitioners have also expressed concerns about a court requiring expedited production under the supposed protection of a 502(d) order.3

Lawyers would be wise to consider how a Rule 502(d) order can help mitigate the loss of inadvertent disclosure. For more discussion of the risks, benefits, and court treatment of Rule 502(d) orders, please see the November 2014 issue of the CBA Report.

1 See Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., 2013 U.S. Dist. LEXIS 29543, (S.D.N.Y. 2013) (permitting claw-back under a 502(d) order even if the defendant had “dropped the ball”). 2 See Bd. of Trustees, Sheet Metal Worker’s Nat’l Pension Fund v. Palladium Equity Partners, LLC, 722 F.Supp.2d 845 (E.D. Mich. 2010) (noting that the court’s protective order represented a 502(d) claw-back agreement, but still continuing to assess whether “defendants took reasonable steps to prevent disclosure”). 3 See Rajala v. McGuire Woods, LLP, No. 08-2638-CM-DJW (D. Kan. Jan. 3, 2013) (Rule 502(d) order “will permit the parties to conduct and respond to discovery in an expeditious manner, without the need for time-consuming and costly pre-production privilege reviews”).