In August of 2021, The Sedona Conference released its Commentary on The Effective Use of Federal Rule of Evidence 502(d) Orders,1 which encourages the more widespread use of court orders entered under Federal Rule of Evidence 502(d). The Commentary highlights the benefits of Rule 502(d) orders, clarifies apparent confusion among practitioners regarding the Rule’s protections and limits, and suggests ways of overcoming potential issues with Rule 502(d) orders.
As the Commentary explains, in 2008 Congress adopted Federal Rule of Evidence 502 for two primary reasons —to address the concern that costs related to the protection of privilege had become prohibitive, and to provide litigants with predictability around the process of protecting privilege in litigation. These two goals are largely advanced through the provisions of Rule 502(d), which permits parties to enter into a court order that acts to prevent any waiver of privilege or work product protection for documents produced in the proceeding. The text of Rule 502(d) is quite simple:
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.
However, despite the promise of Rule 502(d) to provide more certainty around the risk of privilege waiver, and to lower the costs associated with privilege review, in the thirteen years since the rule’s enactment, Rule 502(d) orders generally have been underutilized. The Commentary posits that practitioners fail to leverage the benefits of Rule 502(d) orders because they do not fully appreciate the significant differences between Rules 502(b) and 502(d).
Rule 502(b) is the “default” rule that applies in the absence of a Rule 502(d) order. It provides that a disclosure “does not operate as a waiver in a federal or state proceeding” if the producing party makes three required showings:
- the disclosure was inadvertent;
- the holder of the privilege or protection took reasonable steps to prevent disclosure; and
- the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
Application of Rule 502(b) can place a significant burden on the parties and the court. The parties must litigate—and the court must adjudicate—whether all three of the necessary showings have been established. This requires the parties to engage in motion practice, and often to conduct discovery into the facts surrounding the disclosure and the steps taken to prevent and/or rectify the disclosure.
By contrast, application of Rule 502(d) is straightforward and streamlined. If a Rule 502(d) order has been entered, the producing party generally can “claw back” a privileged document simply by notifying the other parties that it is doing so. No showing of inadvertence is required, and the producing party does not have to demonstrate that it acted reasonably to prevent the disclosure. Typically, the only challenge the receiving party can make to the claw-back is whether the document is, in fact, privileged. As the Commentary notes, “given their ease of use and self-executing relief, Rule 502(d) orders have been often referred to as ‘get out of jail free cards.’” As one court observed, Rule 502(d) was “designed to allow the parties and the Court to defeat the default operation of Rule 502(b) in order to reduce costs and expedite discovery.” 2
The use of Rule 502(d) orders confers substantial benefits to litigants and the courts. By eliminating the risks of potential privilege waiver, Rule 502(d) allows the producing party to develop a workflow for privilege review specifically tailored for the matter at hand, which can account for the unique nature of the document collection, the risk tolerance of the litigant, and cost constraints around the discovery process. These workflows often enable a quicker timeline for production, which can confer a significant benefit to the receiving party. Finally, Rule 502(d) orders can reduce motion practice regarding privilege disputes, allowing the court to avoid fact-intensive inquiries into the three Rule 502(b) requirements and conserve judicial resources.
The mechanism for leveraging the benefits of Rule 502(d) is entry of a court order. A court may enter a Rule 502(d) order sua sponte or on motion by one or more parties; consent of all parties to the order is not required. Appendix A to the Commentary contains an example of an elegantly simple form of such an order, which tracks the language of Rule 502(d). Section V of the Commentary offers suggestions for additional provisions the parties might want to consider adding to a Rule 502(d) order, and provides guidance that can help avoid unnecessary disputes over application and enforcement of the order.
The Commentary’s conclusion is succinct and direct: “The Sedona Conference continues to recommend obtaining a Rule 502(d) order, most often in the form found in Appendix. A to this Commentary, in every case in federal court.” And as former Magistrate Judge Andrew Peck often stated, it would be “akin to malpractice” for a lawyer not to do so.
1 23 SEDONA CONF. J. 1 (forthcoming 2022), available for download at https://thesedonaconference.org/publication/Commentary_on_Effective_Use_of_FRE_502d_Orders.
2 Rajala v. McGuire Woods, LLP, No. 08-cv-2638, 2013 WL 50200 at *5 (D. Kan. Jan. 3, 2013).