Extract from Christopher Boehning and Daniel J. Toal’s article “In Absence of a 502(d) Order, Court Finds Waiver of Privilege”
Federal Rule of Evidence 502 was enacted in 2008 as a response to the ongoing challenges of privilege review in the e-discovery era. Considering the volume and complexity frequently involved in discovery of electronically stored information (ESI) and the often compressed time frames and massive costs for privilege review, parties faced significant hurdles to meeting their e-discovery obligations while still protecting privilege and managing costs.
The federal circuits applied varying standards on when a disclosure resulted in privilege waiver. And even though many parties had begun to enter into “clawback” agreements allowing them to retrieve privileged documents that had been inadvertently produced without risking waiver, it was not clear whether these agreements were valid and, if so, if they would be binding on non-parties or in other matters.
Rule 502 sought to address multiple issues in one rule. For instance, subdivision (a) limited “subject matter waiver,” subdivision (b) resolved the circuit split on whether an inadvertent disclosure of privileged materials results in a waiver, setting forth a test to determine if a waiver occurred, and subdivision (d) authorized courts to order clawback agreements and enforce them against non-parties and in any other federal or state proceeding.
And while courts at first wrestled with the interplay between 502(b) and 502(d), over the years some standard practices emerged, including recognition that a well-crafted 502(d) order was the most effective way to ensure that disclosure of privileged materials will not result in waiver; that courts were encouraged to enter 502(d) orders, even over the objection of a party; and that 502(d) orders were controlling with respect to how to handle waiver, removing the need for waiver analysis under Rule 502(b) in such matters.
