Robert Jimenez, Espinosa Martinez, Miami.

“It is akin to malpractice not to get [a Rule 502(d)] order.”

It has been several years since Judge Andrew Peck of the influential U.S. District Court for the Southern District of New York uttered those words about Federal Rule of Evidence 502(d), which he also referred to as a “get out of jail free card.” Despite the ever-greater attention to electronic discovery in the legal community, it is alarming how many attorneys—experienced attorneys—fail to implement an important safeguard that could prevent disastrous privilege waivers during discovery. Indeed, “502(d)” is one of the more common e-discovery buzzwords that, like “metadata” and “native file,” should be familiar to even the most novice of litigators, if only because it is so often repeated at conferences and CLEs. Nonetheless, the use of 502(d) orders continues to remain outside the mainstream—a possible sign that the lawyers and judges who preach its gospel are merely preaching to the choir.

Rule 502 governs limitations on the waiver of the attorney-client privilege and work product protection in federal litigation. Subsection 'd,' titled “Controlling Effect of a Court Order,” states 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 rule's protections are sweeping in nature, preventing the waiver of privilege beyond the litigation at issue, regardless of the forum. This is a protection that a confidentiality order—even one that addresses the inadvertent waiver of privilege—simply cannot provide because it crosses the border between federal, state, and administrative proceedings. This begs the question as to why, given its clear benefits, many attorneys do not employ the rule's protections. There are likely four reasons.

First, as Judge Peck has opined, the simplest explanation for the lack of 502(d)'s use is that attorneys are not aware of its provisions. Indeed, any e-discovery attorney who has ever had to explain to an unknowledgeable opponent what an ESI protocol is knows this to be true. This is because a lack of e-discovery knowledge generally goes hand-in-hand with inexperience as to Rule 502(d). This is understandable because attorneys who do not routinely deal with massive volumes of data would have less fear of large scale privilege waiver. As such, 502(d) would be uncommon in their practice. Secondly, some lawyers are hesitant to employ a 502(d) order due to the misconception that a court would be more inclined to allow for broader discovery. This notion fails to take into account that the concept of proportionality—which has been on par with relevance since the 2015 Amendments to the Federal Rules of Civil Procedure—is still the filter through which all discovery requests are analyzed.

The third reason some lawyers do not seek 502(d) orders is because they presume that 502(b)'s requirements always apply. Litigators are aware that it is possible to claw back confidential material produced in discovery, but some assume that, if privilege is challenged, the necessary inquiry always regards whether the accidental production qualifies as “inadvertent” as a matter of law. The provisions of FRE 502(b) compound this viewpoint by making this explicit, outlining a three-pronged test for what qualifies as the type of inadvertent production that waives privilege. However, competent 502(d) orders make it clear that 502(b) would not apply to discovery, heightening protections and making the issue of inadvertence irrelevant. Finally, attorneys who do not use 502(d) orders generally have one thing in common: they have little exposure to the horror stories of what can happen when the rule is not utilized. Recent case law provides an insight.

In Harleysville Insurance v. Holding Funeral Home, a federal case from the Western District of Virginia, an insurance company uploaded files to a service similar to Dropbox in order to produce them to a government agency. The files were not password protected, the link to the files was not set to expire, and the insurance company later added confidential files to the service. Eventually, during litigation, the email containing the link was produced by the government to the opposing party, who was able to access everything the insurance company had uploaded. The magistrate ruled that privilege had been waived, though the district judge later reversed the decision, ironically, under 502(b)'s inadvertence standard. Nonetheless, had a 502(d) order been in place, the entire heartache—and the fees associated with it—could have been avoided.

While there is no shortage of case law regarding privilege waiver, the very best reason for using 502(d) orders is to not find one's self in the fray. E-discovery is expensive enough without compounding the cost through unnecessary litigation over confidentiality. Plainly, attorneys should always utilize the powerful mechanism of 502(d), joining the choir of advocates who sing its praises.

Robert R. Jimenez is an associate with the law firm of Espinosa Martinez in Miami. He focuses on intellectual property litigation and e-discovery. He may be reached at [email protected].