[EDRM Editor’s Note: The opinions and positions are those of Craig Ball. This article is republished with permission and was first published on January 20, 2025.]
Having taught Federal Rule of Evidence 502 (FRE 502) in my law classes for over a decade, I felt I had a firm grasp of its nuances. Yet recent litigation where I serve as Special Master prompted me to revisit the rule with Proustian ‘fresh eyes,’ uncovering insights I hope to share here
I’ve long run with the herd in urging lawyers to “always get a 502 order,” never underscoring important safeguards against unintended outcomes; but lately, I had the opportunity to hear from experienced trial counsel on both sides of a FRE 502 order negotiation and have gained a more nuanced view.
I’ve long run with the herd in urging lawyers to “always get a 502 order,” never underscoring important safeguards against unintended outcomes; but lately, I had the opportunity to hear from experienced trial counsel on both sides of a FRE 502 order negotiation and have gained a more nuanced view.
Craig Ball.
Enacted in 2008, FRE 502 was a means to use the federal rules (and Congress’ adoption of the same) to harmonize widely divergent outcomes vis-à-vis subject matter waiver flowing from the inadvertent disclosure of privileged information.
That’s a mouthful, and I know many readers aren’t litigators, so let’s lay a little foundation.
Confidential communications shared in the context of special relationships are largely shielded from compulsory disclosure by what is termed “privilege.” You certainly know of the Fifth Amendment privilege against self-incrimination, and no doubt you’ve heard (if only in crime dramas) that confidential communications between a lawyer and client for the purpose of securing legal advice are privileged. That’s the “attorney-client privilege.” Other privileges extend to, inter alia, spousal communications, confidences shared between doctor and patient and confidences between clergy and parishioner for spiritual guidance. None of these privileges are absolute, but that’s a topic for another day.
Yet another privilege, called “work-product protection,” shields from disclosure an attorney’s mental impressions, conclusions, opinions, or legal theories contained in materials prepared in anticipation of litigation or for trial. Here, we need only consider the attorney-client privilege and work-product protection because FRE 502 applies exclusively to those two privileges.
Clearly, lawyers enjoy extraordinary and expansive rights to withhold privileged information, and lawyers really, REALLY hate to mess up in ways that impair those rights. I’d venture that as much effort and money is expended seeking to guard against the disclosure of privileged material as is spent trying to isolate relevant evidence. A whole lot, at any rate.
I’d venture that as much effort and money is expended seeking to guard against the disclosure of privileged material as is spent trying to isolate relevant evidence.
Craig Ball.
One of the quickest ways to lose a privilege is by sharing the privileged material with someone who isn’t entitled to claim the privilege. Did the lawyer let the friend who drove the client to the law office sit in when confidences were exchanged? Such actions waive the privilege. One way to lose a privilege is by accidentally letting an opponent get a look at privileged material. That can happen in a host of prosaic ways, even just by the wrong CC on an email. More often, it’s a consequence of a failed e-discovery process, say, a reviewer or production error. Inadvertently producing privileged information in discovery is every litigator’s nightmare. It happens often enough that the various states and federal circuits developed different ways of balancing protection from waiver against findings that the waiver opened the door to further disclosure in a disaster scenario called “Subject Matter Waiver.”
Subject Matter Waiver in U.S. law refers to the principle that, when a party voluntarily discloses privileged information (such as attorney-client communications or work product) on a specific subject, they may be deemed to have waived the privilege as to all other communications or materials on the same subject matter. This is intended to prevent selective disclosure that could mislead or disadvantage the opposing party.
Before FRE 502, some courts found Subject Matter Waiver occurred readily (e.g., Washington, D.C.) while others were highly protective of privilege despite inadvertent disclosure (e.g., Texas). I used to make my law students study Judge Paul Grimm’s decision in Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005) to underscore the contortions Courts employed to avoid letting inadvertent disclosures spawn subject matter waiver claims in other cases and jurisdictions. Judge Grimm’s ingenuity was to ‘order’ disclosure of the privileged matter, reasoning that a court-ordered disclosure was not intentional and thus did not waive privilege.
FRE 502 supplied both a framework to guard against inadvertent waivers in the matter and a means to forestall waivers in other matters without the hoop-jumping of Hopson. If we look at how FRE 502 is structured, 502(a) serves to limit the scope of subject matter waiver for intentional waivers and 502(b) sets out the process by which the parties resolve inadvertent disclosures, with the requisite duty to prove inadvertence and reasonable steps to prevent and rectify inadvertent disclosure. The parties don’t have to agree to 502(b): it’s the default–the operative process in the absence of an agreement or a contrary order.
A key goal of FRE 502 is to make its protections apply across courts, including state tribunals, and bind persons who are not parties to non-waiver agreements between the parties in other state or Federal actions. This is why it was crucial that FRE 502 be enacted by Congress to give it national reach, and the mechanism employed to achieve such reach is termed a 502(d) Order.
A 502(d) order is a court order under Federal Rule of Evidence 502(d) that protects parties from waiving attorney-client privilege or work-product protection if privileged information is disclosed during litigation, regardless of whether the disclosure is inadvertent or intentional. It ensures the privilege remains intact, even in other proceedings.[1]
For years, litigants paid not the slightest heed to FRE 502 despite my colleagues and I ceaselessly flogging its virtues in conferences. Former U.S. Magistrate Judge Andrew Peck famously characterized the failure to secure the multijurisdictional benefits of a 502(d) order as tantamount to attorney malpractice. Some pundits pronounced that a 502(d) order afforded such leeway that even the intentional disclosure of confidential attorney client communications would not support a claim of waiver in other courts if the 502(d) order provided such a robust level of protection. The extreme (and perennially hypothetical) contention was that a federal court would enter a 502(d) order whereby a recalcitrant party would be directed to produce material without being afforded an opportunity to undertake a privilege review because 502(d) would allow them to claw back privileged material without risk of waiver. That’s a perversion of the rule, and I’ve never seen it applied in that bone-chilling way.
FRE 502(d) benefits a producing party through more than its multijurisdictional application; it’s also geared to the reduction of discovery costs by scaling back costly inquiries into inadvertence and reasonableness of privilege review mechanisms. I’m uncertain where, when or why anyone got the idea that a 502(d) order must operate to dispense with any and all of the obligations of 502(b) or other guardrails against gross unfairness which the Court sees fit to impose. I don’t see that in the language of the Rule nor in the Comments of the Advisory Committee. Yet, some unironically label a 502(d) order a “get out of jail free” card for errant responders. That distorts its proper purpose.
Again, by default, FRE 502(b) governs waiver caused by inadvertent disclosures. FRE 502(d) empowers courts to depart from the default to foster more efficient and cost-effective discovery, particularly costs and risks attendant to electronic discovery. Achieving those goals need not subject parties to abuses that can follow from dispensing with the protections afforded by 502(b). In the words of the Advisory Committee, “The rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.” Reasonable diligence and timeliness are two such guardrails. Reasonable time limits are another.
In the case before me as Special Master, the plaintiffs expressed concern that a party may discover privileged material has been produced yet unduly delay a demand for clawback of assertedly privileged materials (and to block use of any derivative work product or testimony) until doing so would unfairly prejudice parties or the Court. So, Plaintiffs sought protection against gross abuse of the clawback process since there were no protections whatsoever included in the defendants’ proposed 502(d) order (mirroring the Model Rule 502(d) Order promulgated by The Sedona Conference). The defense countered that, in the face of such gross abuse and inherent unfairness, the Court could step in to clarify the limits of its 502(d) order and curtail abuses. Essentially, a not unreasonable ‘we can cross that bridge when we come to it.’
It seems clear to me Courts can afford parties the multijurisdictional and other protections of 502(d) without unnecessarily subjecting litigants and the Court to an outsize risk of abuse in the timing and circumstances of clawback. That is; by clarifying matters within the 502(d) order, we forestall disputes.
Per The Sedona Conference, Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders, 23 SEDONA CONF. J. 1 (2022) at p. 18, “…parties may wish to discuss whether any time limits should be included in their Rule 502(d) order (or in a protective order or similar document) or whether (and if so, how) documents or their contents can be submitted to the court as part of a privilege dispute.”
The Plaintiffs sought reasonable time limits to be incorporated into the 502(d) order, and it wasn’t clear to me why reasonable, objective time limits would hinder the parties’ ability to avoid the fact-intensive inquiries regarding inadvertence and reasonable steps otherwise needed to be shown under 502(b). Reasonable time limits balance cost savings and efficiency. At the same time, they protect against potential unfairness and abuse. A time limit also fosters the laudable goal of predictability and certainty in addressing clawback.
For example, if we consider the use of privileged material in depositions, it’s long been understood that the party asserting privilege must promptly object to its use or the privilege is waived. Yet in complex litigation with divergent discovery and deposition counsel, it may be challenging for the attorney who is obliged to assert the privilege to “snap” to the privileged character during the testimony. How much time should a privileged party have to assert the privilege? If “right at the time of use” seems to ask too much, then “anytime up to time of trial” seems to ask too little. Per The Sedona Conference, adopting limiting language in a FRE 502(d) order “could strike a balance between a responding party’s interest in protecting privileged documents and a requesting party’s need to prepare the matter for trial without the universe of available evidence continually or dramatically shifting during the course of the litigation.” Id.
How much time should a privileged party have to assert the privilege? If “right at the time of use” seems to ask too much, then “anytime up to time of trial” seems to ask too little.
Craig Ball (emphasis in original).
To their credit, the parties worked it out and settled upon the following language for the FRE 502(d) order:
1. The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information (“Documents”), 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).
2. Notwithstanding the foregoing, the Parties agree that any Document(s) used by any Party in a deposition, expert report, or court hearing or filing in this action (with the exception of a motion related to a disputed privilege claim or a disputed confidentiality designation) (“Used Document”), which a Producing Party does not provide written notice of a claw back within forty (40) days of its initial use, shall be ineligible for claw back under 502(d).
Used Documents deemed ineligible for claw back under 502(d) shall not result in a subject matter waiver in this proceeding, or in any other state or federal proceeding. The Parties reserve all rights under FRE 502(b) regarding Used Documents.
3. The Parties further agree that if only a portion of a Used Document is subject to a claw back request, and the portion of the Used Document requiring redaction was not referenced by any Party in a deposition, expert report, or court hearing or filing in this action, then the Used Document will only be deemed ineligible for claw back under 502(d) if the Producing Party does not provide written notice of a claw back within sixty (60) days of its initial use.
4. 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.
5. With the exception of ¶¶ 2-3 above, the provisions of Federal Rule of Evidence 502(b) do not apply.
The lesson here is that, even in high-volume e-discovery cases, litigants need not suffer a boundless claw back provision with attendant risk of abuse to be spared the burdens of FRE 502(b). FRE 502(d) orders should take forms suited to the needs of the case. While the Sedona model offers a useful starting point, its broad language may not fit every case, necessitating tailored adjustments. In sum, FRE 502(d) orders offer vital protections in modern litigation but must be carefully tailored to the needs of each case. By incorporating balanced safeguards, parties can achieve efficiency without sacrificing fairness.
Read the original article here.
Notes
[1] The language of Federal Rule of Evidence 502(d) is 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.”
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