Effective Use of Rule 502(d) in E-Discovery Cases

Used properly, Federal Rule of Evidence 502, and particularly Rule 502(d), can be one of the most valuable assets available to e-discovery counsel in dealing with the attorney-client and attorney work product privileges during review and production of electronically stored information (ESI). Carefully crafting a comprehensive electronic discovery process, and memorializing the process in a court order issued pursuant to Rule 502(d), can effectively minimize the time and expense associated with privilege review and virtually eliminate the potential for waiver of the privileges resulting from disclosure during the production process. Moreover, the privilege protection extends not only to the pending litigation, but also to any other federal or state proceeding.

The current Federal Rule of Evidence 502, which applies only to the attorney-client and attorney-work-product privileges, was passed by Congress on Sept. 8, 2008, and signed into law by the president on Sept. 19, 2008. Rule 502 specifically addresses the circumstances under which the disclosure of privileged information in the course of production in a federal proceeding will, or will not, effect a waiver of the privilege and the scope of the waiver.

The cornerstone of privilege protection under Rule 502 is Rule 502(d), which provides 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." The protections available under Rule 502(d) do not depend on whether the disclosure was inadvertent. In fact, the Advisory Committee Note to Rule 502(d) establishes that a court order issued under the authority of Rule 502(d) may provide for non-waiver regardless of the care taken by the disclosing party.

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Source: law.com
By: Thomas C. Gricks III