Draft in progress: Effective Use of Non-Waiver Orders under Federal Rule of Evidence 502(d)

Privilege review has been the bane of discovery practice for generations. It was not until the advent of the digital age and the corresponding explosion of information that federal rule makers crafted a regime that could realistically lessen the costs and other burdens of privilege reviews. Effective 2008, Congress enacted Federal Rule of Evidence 502. Since its passage, carefully prepared orders under Rule 502(d) generally have insulated litigants from motion practice over whether production of attorney-client privileged information or attorney work product waived the privilege.Despite the much-needed protection that Rule 502(d) orders provide, widespread use of 502(d) orders has been slow in coming. The biggest obstacle to use has been and remains ignorance; either of the existence of Rule 502 or of its operative provisions. Indeed, the fundamental reason why The Sedona Conference published its Commentary on the Protection of Privileged ESI in December 2015 was “to breathe some needed life into the understanding and use of Rule 502.” Thanks to that Commentary and the 2015 amendments to the Federal Rules of Civil Procedure, there has been a general increase in the use of 502(d) orders over the past three years. Nevertheless, problems still prevent the fulfilment of 502(d)’s promise. For example, drafting errors by counsel have unwittingly incorporated the common law test of inadvertence into 502(d) orders. Issues have also appeared with the timing of a clawback request or overly broad clawbacks. All of these issues have led to satellite litigation and defeated the efficient safeguards that 502(d) orders are designed to provide.The solution to these and other problems is likely to be found in practical and straightforward guidance on preparing effective 502(d) orders. Accordingly, the Rule 502(d) drafting team will develop a Sedona Conference Primer that: (i) spotlights issues with 502(d) orders that create confusion, lead to satellite litigation, or otherwise unreasonably delay privilege reviews; (ii) develops standard provisions for 502(d) orders; and (iii) provides additional guidance and best practices to better ensure the most effective utilization of Rule 502(d) orders.