Cristin Traylor, Relativity: What Is a 502(d) Order and Why Should You Care?

Extract from Cristin Traylor’s article “What Is a 502(d) Order and Why Should You Care?”

To avoid waiver of privilege and costly fights over the merits of your review’s quality control procedures, it’s prudent to secure a Federal Rule of Evidence 502(d) order in federal cases. Simply put, Rule 502(d) permits a federal court to enter an order stating that production of documents protected by the attorney-client privilege or work product doctrine does not waive those protections in the specific litigation or any other federal or state proceeding.

In other words: If you have a 502(d) order and you inadvertently produce privileged documents, you will be able to claw them back with “no questions asked” about your e-discovery process. The only thing that matters is whether the documents are, in fact, privileged.

If you do not have a 502(d) order, then the production of those documents falls under 502(b), where you have to show that you took reasonable precautions to avoid the production of privileged documents, you rectified the error “promptly,” the percentage of privileged documents in the overall production was low, and the return of the documents is “fair,” before you’re able to claw them back.

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