FRE 502(d) – An Underutilized 'Safety Net' In Document Intensive Litigation

The inadvertent disclosure of privileged material may haunt a company for years, particularly in today's era of pattern litigation and increased collaboration within the plaintiffs' bar. Fortunately, in matters pending in federal court, this consequence can be avoided through the use of Federal Rule of Evidence (FRE) 502(d).

The attorney-client privilege is arguably "the most sacred of all legally recognized privileges." United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997). As explained by the Supreme Court, "[i]ts purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Naturally, the importance of preserving privilege and avoiding waiver cannot be overstated. This is particularly true in the context of product liability litigation where certain documents may be repeatedly placed at issue across numerous lawsuits involving the same product model.

Despite its simplicity, FRE 502(d) continues to be underutilized despite having been enacted in 2008. The rule provides as follows:

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.

The purpose of 502(d), which pertains to "disclosure of a communication or information covered by the attorney-client privilege or work-product protection," is simple. An order entered pursuant to the rule provides litigants an extra layer of protection in the event of inadvertent production. Importantly, the production of a privileged or protected document does not constitute a waiver on behalf of the producing party both in the current litigation and "in any other federal or state proceeding." In stark contrast to FRE 502(b), which requires a demonstration that the producing party took reasonable steps to prevent disclosure and rectify the error, an order under 502(d) provides absolute protection so long as the disclosure was "connected with the litigation pending before the court."

As explained by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, the impetus for FRE 502 was a recognition that "the current law on waiver of privilege and work product is...