Braving the Storm with Fed. R. Evid. 502(d)

Braving the Storm with Fed. R. Evid. 502(d)

The second day of wintry LegalTech New York 2014 heated up at the morning Judges Panel when the discussion turned to the value of Federal Rules of Evidence 502(d). Taking the distinguished panel’s lead, what follows are the rule’s what, why and how.

Rule 502(d) states 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.

As the Advisory Committee Notes state, Rule 502(d)’s intent was to respond to the widespread complaint that litigation costs to protect against the waiver of attorney-client privilege or work-product protection had become prohibitive due to the concern that any disclosure would operate as a subject matter waiver of all protected communications or information.

Enacted in 2008, the rule is favored among many judges because of its ability to not only reduce the cost of privilege review, but also facilitate the rapid review and production of documents, particularly electronically stored information (ESI) in e-discovery cases, without the delay and expense of motion practice for potential waivers of privilege.

In fact, to ensure that counsel is aware of and have considered employing the rule,

United States Magistrate Judge Andrew J. Peck (S.D.N.Y), an LTNY 2014 Judges Panel member and fervent Rule 502(d) advocate, states in his form for Rule 16 order: “The parties have discussed a 502(d) Order. Yes ___; No ____.  The provisions of any such proposed Order shall be set forth in a separate document and presented to the Court for its consideration.” It’s worth noting that at the same panel, he referred to the rule as a “get out of jail free” card when a privileged document or ESI is revealed in production.

As was the intent of Rule 502(d), if used properly, and the privilege review process addressed comprehensively, the rule can be a valuable tool for counsel. Not only can it reduce time and expense associated with privilege review, but also it can protect a client from the potential waiver of privileges resulting from disclosure in production. Furthermore, the privilege protection applies to pending litigation as well as federal or state proceeding.

In his 2011 article in The Legal Intelligencer, “The Effective Use of Rule 502(d) in E-Discovery,” Thomas Gricks offers sound advice on crafting the order.

“Regardless of whether ESI will or will not be reviewed for privilege before production, the Rule 502(d) order should: (1) state that it addresses any disclosure, whether inadvertent or not; and (2) parrot the rule, and explicitly state that disclosure does not effect a waiver in either the litigation pending before the court, or any other federal or state proceeding. No privilege review process will ever be perfect, especially in large electronic discovery projects, and privileged information may well be disclosed. To avoid any potential ambiguity, especially in the context of a separate proceeding in which a different judge may be called upon to interpret the waiver issue, the scope and effect of the Rule 502(d) order should be unequivocal.”

Gricks goes on to advise that the rule should contain a claw-back provision and that the entire procedure should be as specific as possible.

The rule has appeared in a number of cases. For example, in Chevron Corp. v. The Weinberg Group, the court considered Rule 502(d) orders from both parties and ended up incorporating much of Chevron’s proposed language as it kept the burden of proving any claim of privilege on the party asserting it.

In that order, United States Magistrate Judge John M. Facciola (District of Columbia), also a panel member at LTNY 2014, noted that “the Court is troubled that the Weinberg Group has just now discovered Rule 502(d), the use of which may have prevented the protracted litigation and discovery battles that have plagued this case for the past two years.” He also stated that when used properly, a “502(d) order can alleviate much of the meaningless back and forth these parties have already endured.”

It’s worth considering, then, the use of Rule 502(d) in counsel’s own e-discovery cases to avoid any mess, expense and delays, not unlike those seen in the New York City snow last week.

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