To avoid waiver of privilege and costly fights over the merits of your review’s quality control procedures, it’s prudent to secure a Federal Rule of Evidence 502(d) order in federal cases. Simply put, Rule 502(d) permits a federal court to enter an order stating that production of documents protected by the attorney-client privilege or work product doctrine does not waive those protections in the specific litigation or any other federal or state proceeding.
In other words: If you have a 502(d) order and you inadvertently produce privileged documents, you will be able to claw them back with “no questions asked” about your e-discovery process. The only thing that matters is whether the documents are, in fact, privileged.
If you do not have a 502(d) order, then the production of those documents falls under 502(b), where you have to show that you took reasonable precautions to avoid the production of privileged documents, you rectified the error “promptly,” the percentage of privileged documents in the overall production was low, and the return of the documents is “fair,” before you’re able to claw them back.
In weighing those factors, the court could rule either way—meaning your documents may or may not fall under opposing counsel’s review. The examination puts your whole e-discovery process on trial, and of course you do not want your privileged documents disclosed to and used by opposing parties in your current matter or any other matters.
In fact, the Honorable Andrew Peck (retired) of DLA Piper has said, “For anyone likely to produce more than a handful of documents, it would be akin to malpractice to not seek a 502(d) non-waiver order in federal court.”
Even If Your Privilege Review Process is Top-Notch
You may be thinking the need for 502(d) orders doesn’t apply to your organization because you have a robust privilege screening and quality control process, and the chances of a document slipping through the cracks are pretty slim.
Perhaps you already set up privilege term searches for highlighting, you run name normalization to locate additional privileged aliases, you use email threading and near-duplicate identification to analyze threads and dupes of privilege documents, and you use clustering to find similar documents to those already marked as privileged.
Even if this is the case, no system is perfect, and humans can make mistakes. As Judge Peck cautioned: “With the volume of data to be reviewed in most cases today, no matter how good your privilege review process, something will slip through and get produced. Maybe it will be an email from business person A to business person B, saying ‘Jack said we should do X,’ and the reviewer doesn’t connect Jack to the general counsel, John Smith. The 502(d) order is your ‘get out of jail free’ card to get that email back.”
Why not take advantage of a rule that is meant to protect all parties from accidentally disclosing their sensitive privileged communications?
Best Practices for Seeking a 502(d)
Once you decide to obtain a 502(d) order, there are some additional items to consider. The rule itself seems straightforward, but in practice there are a lot of nuances surrounding these orders. Here are just a few:
- Should parties engage in “quick peeks” if they have a 502(d) order?
- What are the ethical issues involved in either producing documents without a thorough privilege review, or reviewing inadvertently produced privileged documents if you are the requesting party?
- Should the order set deadlines and processes for clawback handling?
- What about privileged documents that were used in a deposition? Should parties be able to claw those back? Is there any time limitation on when the clawback can occur?
- What if a party decides to perform a “data dump”? Is that fair to the requesting party and should there be provisions in the order to address it?
Fortunately, the Sedona Conference discusses these questions and others in their recently published draft “Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders,” which can be downloaded here.
This draft is available for public comment until August 1, 2021, as it will be important to hear from additional practitioners on how this rule is applied in practice and how it should be implemented.
Judge Peck (the commentary’s co-editor-in-chief and steering committee liaison) has been advocating for the use of 502(d) non-waiver orders for years and hopes that the commentary will encourage and educate more lawyers to use such orders.
In case you are not familiar with The Sedona Conference, it is a nonpartisan, nonprofit 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, intellectual property rights, and data security and privacy law. Their mission is to move the law forward in a reasoned and just way through the creation and publication of nonpartisan consensus commentaries and through advanced legal education for the bench and bar.
Anyone can submit public comments to the 502(d) Commentary—you do not need to be a member of The Sedona Conference. If you are interested in learning more, The Sedona Conference is holding a webinar on July 14, where members of the drafting committee will discuss the effective use of 502(d) orders. You can find the webinar details here (full disclosure: I will be one of the panelists, along with my esteemed colleagues, Nathaniel Giddings from Hausfield, Todd Heffner of Troutman Pepper, Henry Kelston from Ahdoot & Wolfson, and Scott Milner-Morgan of Lewis & Bockius; our discussion will be moderated by Leeanne Mancari-DLA Piper).
Don’t Be Afraid to Speak Up
When I was a practicing attorney, obtaining a 502(d) order was always on my standard checklist for litigation matters. But you don’t have to be an attorney to advocate for a 502(d) order.
Whether you are a paralegal, litigation support specialist, attorney, or other legal professional working on a matter, you can speak up and ask whether a 502(d) order has been entered—and if not, you can request one be entered prior to producing documents. Tell others about the benefits of these orders, along with the pitfalls of not having such an order. Point them to The Sedona Conference commentary. If your job is at all related to the review and production of documents, you should care about 502(d) orders. And your advice on the matter could end up saving the case.