Utilizing Federal Rule of Evidence 502(d) as Insurance for Inadvertent Disclosure and a Cost-Saving Device

By Kyle M. Heisner, Esq.*

Congress enacted Federal Rule of Evidence 502 in 2008 to address the growing risk of inadvertent production of privileged documents as e-discovery became more prevalent. Rule 502(b) provides automatic protection in all federal cases for privileged material (including, but not limited to, e-discovery) that is disclosed inadvertently after reasonable steps were taken to prevent its disclosure, so long as counsel also took prompt steps to rectify the error. Failure to meet these requirements could constitute a waiver of privilege. Even if a court rules that the disclosure did not constitute a waiver, costly motion practice could be required to obtain such a ruling.

Despite the risks outlined above, Rule 502(d) has gained limited traction among practitioners. Recent amendments to the Federal Rules of Civil Procedure, which went into effect on December 1, 2015, now specifically reference 502(d) orders in Rules 16 and 26 in an attempt to popularize their use. Under Rule 502(d), the court may issue an order containing terms typically, but not necessarily, stipulated by the parties limiting the circumstances under which disclosure of privileged materials constitutes a waiver. Documents inadvertently produced are protected regardless of the level of care taken to review them for privilege prior to production, and the order can even be tailored to allow the claw back of privileged materials that were produced intentionally.

The intentional production of privileged materials can be used as a cost-saving measure where a party’s adversary is allowed to review a large set of documents under a “quick peek” arrangement in order to identify the documents it would like produced from that larger set. By allowing an adversary to first expend the time to identify specific documents for production, a party can save the time and expense of reviewing the entire volume of documents for privilege and focus its efforts on the narrower set of document production identified by opposing counsel. Of course, counsel should be familiar with the nature of what documents are being produced, and this approach should only be taken where the privileged materials are not highly sensitive.

Another advantage of a 502(d) order is that it can permit parties to disclose privileged materials in one proceeding while maintaining the privilege in any other state or federal proceeding. In other words, a party can disclose privileged materials to its adversary where doing so may help resolve the case without worrying about what effect a privilege waiver might have in other proceedings.

The additional protection that a 502(d) order provides for inadvertently produced documents has led one judge, Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York, to suggest at multiple speaking engagements on this subject that failure to do so could be akin to malpractice. Moreover, there are no inherent disadvantages to securing a 502(d) order. It is conceivable, however, that a judge might be more inclined to compel the production of privileged or potentially privileged documents if such an order is in place. Counsel should be prepared to discuss the purpose and intent of the Rule should this occur, and to respectfully explain that it is improper for the Rule to be used to infringe upon a party’s right to privilege or protection.

Drafting a 502(d) Order

As previously indicated, a Rule 502(d) order can be tailored by the parties to reflect the terms by which they would like discovery to proceed. The most important language to include in a 502(d) order is that the production of privileged documents or information is not a waiver of the privilege or protection from discovery in the case at hand or in any other state or federal proceeding. To avoid any confusion regarding what standard is to be applied, the order should not make reference to the reasonableness standard of Rule 502(b), and the term “inadvertent” should be used carefully if the parties intend the order to protect documents produced intentionally. The parties may even consider specifically stating that the analysis of Rule 502(b) is inapplicable. Judge Peck provides an example of a simple 502(d) order on his chambers’ website, which contains the following two paragraphs:

The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).

Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.

These clauses provide the basic framework for a 502(d) order, but they can be expanded upon significantly to suit the parties’ needs. Another helpful, but optional, clause to include in a 502(d) order is one that sets forth the procedure to be followed when a party wishes to clawback inadvertently produced documents. Including such a clause streamlines the clawback procedure and avoids any dispute over what is expected from each party. Similarly, clauses setting forth the procedure for producing privilege logs (if any), handling discovery disputes as to claims of privilege and other discovery-related items are optional, but can assist in streamlining the discovery process. Marshall Dennehey attorneys appreciate the sensitive nature of their clients’ records and are ready to assist in tailoring a 502(d) order that ensures their protection.

A few samples of general Rule 502(d) Orders are available from the following resources:

• Chambers of Hon. Andrew J. Peck, U.S.M.J. (http://www.nysd.uscourts.gov/judge/Peck)
• Fordham Law Review (http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4872&context=flr)
• Seventh Circuit Electronic Discovery Pilot Program (http://www.discoverypilot.com/content/model-discovery-plan-and-privilege-order)

*Kyle, an associate in our Philadelphia, Pennsylvania office, can be reached at 215.575.2610 or kmheisner@mdwcg.com.

_{Defense Digest, Vol. 22, No. 2, June 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}