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Now You See It, Now You Don’t: Disclosure without Waiver of Privilege Under Rule 502(d)

Federal Rule 502(d) is an important and, to date, underutilized tool in a federal litigator’s discovery arsenal.  It can provide predictability and valuable protections to producing parties, limiting the costs of exhaustive preproduction privilege review and minimizing disruptions.

Federal litigators should take heed of a novel provision in Federal Rule of Evidence 502 that can significantly impact the logistics and costs of parties’ production and use of documents and electronically stored information (“ESI”) during litigation. Enacted in September 2008, Federal Rule of Evidence 502(d) allows a district court—with or without parties’ consent—to enter an order requiring parties to comply with a nonwaiver or “clawback” provision pertaining to the disclosure of communications or information covered by the attorney-client privilege or work-product doctrine.1 A nonwaiver or clawback provision will typically “undo” a document production, and allow a party to seek the return of privileged documents that were produced to the opposing party without waiver of any privileges applicable to the produced documents, and often regardless of the amount of care taken by the producing party.2 Rule 502(d)’s nonwaiver protections are significant because they extend beyond the pending litigation to other federal or state proceedings.3

Given the explicit authority provided to a district court under Rule 502(d) to control and define the effects of disclosure of privileged information, savvy federal litigators should remain cognizant of the availability of a Rule 502(d) order to shape discovery activities in a case, particularly one involving voluminous production of documents and ESI.  As discussed below, in considering whether a Rule 502(d) order would be useful in any given case, an attorney should examine how Rule 502(d) has been utilized by district courts to date and recognize the potential and unresolved issues relating to the new rule.

Controlling Effects of Disclosure 

Federal Rule of Evidence 502, entitled “Attorney-Client Privilege and Work Product; Limitations on Waiver,” was enacted to resolve “longstanding disputes” concerning the effects of disclosures of information protected by the attorney-client privilege or work product doctrine, and “respond[] to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information.”4 Subdivisions (a)-(c) of Rule 502 address the effects of certain disclosures in federal or state proceedings or to a federal office or agency.5 Subdivisions (d) and (e) concern the controlling effect of a court order or party agreement.6

Rule 502(d), entitled “Controlling effect of a court order,” 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 [f]ederal or [s]tate proceeding.” The Advisory Committee Notes to Rule 502(d) make clear that a district court can enter an order governing the consequences of disclosure of privileged material in the pending litigation regardless of the parties’ agreement to its terms, noting explicitly that “[p]arty agreement should not be a condition of enforceability of a federal court’s order” under Rule 502(d).7

The advisory committee envisioned that Rule 502(d) would empower courts to fashion orders to allow parties to expeditiously conduct and respond to discovery in a cost-effective manner, particularly in cases involving electronic discovery.8 As one district court has noted, Rule 502(d) “provides a party with a predictable protection from a court order—predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.”9

Compliance with Nonwaiver Provisions

District courts have utilized Rule 502(d) orders to require objecting parties to comply with nonwaiver provisions. For example, Radian Asset Assurance, Inc. v. College of the Christian Brothers of New Mexico involved a dispute between parties over how to handle one party’s production of voluminous backup tapes and hard drives.10 The producing party was willing to produce the unreviewed ESI under a Rule 502(d) order preserving the producing party’s claims of privilege or work product protection, but the requesting party objected, contending that the producing party should instead be required to restore the backup tapes, search and review the ESI, and produce only responsive materials.11 The requesting party contended that a Rule 502(d) order would allow the producing party to “simply dump all of its ESI” on the requesting party, and force the requesting party to sort for responsive information in violation of the discovery rules.12

The Radian court rejected the argument that it was improperly utilizing Rule 502 as a discovery cost-shifting tool, explaining that it did not rely on Rule 502 for its authority to order the requesting party to produce the ESI, but that once it was determined that the ESI should be produced, “Rule 502 gives the [c]ourt the authority to preserve the [producing party]’s privilege for the … ESI despite its production.”13 The Radian court ordered that pursuant to Rule 502(d), the disclosure of the unreviewed ESI “shall be made without waiver of any attorney-client privilege or work-product protection[.]”14 The Radian order is significant in that the court did not require the producing party to conduct any preproduction review of the ESI since the Rule 502(d) order was effective to prevent any waiver of any privileges associated with the unreviewed ESI.

Another Rule 502(d) case, Rajala v. McGuire Woods, LLP, involved a dispute between parties regarding whether a joint protective order should contain a clawback provision.15Seeking entry of a clawback provision under Rule 502(d),16 the moving party contended that the provision was necessary in order to prevent costly, time-consuming, and contentious discovery disputes in the case, which involved a large amount of documents and ESI.17 The opposing party contended that no clawback provision was justified and that any waiver issues should be ruled upon if and when a party claimed that confidential information had been inadvertently produced.18

The Rajala court determined that a Rule 502(d) order was warranted because discovery would include the production of an extensive amount of ESI and there was a high risk of inadvertent disclosure of privileged and protected documents, given the nature of the documents and ESI at issue.19 The Rajala court further noted that disputes regarding the inadvertent disclosure of privileged and protected documents would disrupt the discovery process, and given the “[n]umerous discovery motions” that had already been filed in that case, the court saw “no reason to invite more.”20

Scope of Authority Undefined

While the Radian and Rajala courts’ uses of Rule 502(d) orders are instructive, federal courts have yet to outline what a district court can require of parties under Rule 502(d).

For example, a key issue to consider when addressing a Rule 502(d) order is whether and in what manner a producing party must conduct a preproduction review of the documents and ESI subject to the Rule 502(d) order. The Radian court did not require the producing party to conduct any preproduction review under the Rule 502(d) order, while the Rajala court’s Rule 502(d) order applied only to inadvertently produced documents.21 Allowing parties to produce voluminous documents and ESI without conducting any preproduction review raises concerns that parties could simply “dump” information upon adversaries and allow parties to bury relevant information in large productions of documents and ESI.22 The risk of undifferentiated document dumps needs to be weighed against the justification for Rule 502(d), which is to allow parties to conduct and respond to discovery expeditiously, without the need for exhaustive preproduction privilege reviews, while preserving applicable privileges.23 An attorney considering the utility of a Rule 502(d) order should carefully conduct a cost-benefit analysis to determine how the inclusion or absence of a preproduction review requirement in the order would affect their party’s production, receipt, and use of documents and ESI.24

Another important Rule 502(d) issue concerns whether a court can compel parties to comply with nonwaiver or clawback provisions over the objections of both parties.  In both Radian and Rajala, the producing parties were willing to produce documents and ESI under the umbrella of a Rule 502(d) order.25 No court appears to have addressed whether and in what manner a court can sua sponte compel a party to produce documents and ESI to an opposing party without being afforded the opportunity to conduct a preproduction review for attorney-client privilege and work product protection.  While the Advisory Committee Notes state that
“[p]arty agreement should not be a condition of enforceability of a federal court’s [Rule 502(d)] order,”26 commentators have noted that whether a court may force a nonwaiver provision or so-called “quick peek” document production upon objecting disclosing parties is one of first impression that remains undecided.27

While the scope of a district court’s Rule 502(d) power remains undefined, when faced with the prospect of a court entering a Rule 502(d) order—whether sua sponte or upon a party’s motion—attorneys should pay careful attention to how the terms of the order will affect their clients, including, in particular: (1) whether the producing party will need to conduct a preproduction review, (2) the types of disclosures covered by the order (i.e., any disclosed documents or only inadvertently disclosed documents), (3) the specific procedures for identifying to the opposing party disclosed but privileged documents, (4) the treatment of disclosed but privileged documents during and after litigation, and (5) whether the order extends to subpoenaed or third-party documents.28

Conclusion

Rule 502(d) is an important and, to date, underutilized tool in a federal litigator’s discovery arsenal.  It can provide predictability and valuable protections to producing parties by limiting the escalating costs of exhaustive preproduction privilege review and by minimizing the disruptions caused by disputes regarding waiver and the advertence of disclosures of privileged and protected documents and ESI.  Attorneys should carefully consider whether issuance of a Rule 502(d) order could facilitate a smoother and less costly discovery process in all federal cases, particularly those involving voluminous e-discovery.

Shannon M. Awsumb is an attorney at Anthony Ostlund Baer & Louwagie P.A., in Minneapolis.  Her practice focuses on business litigation.

Notes

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