Federal judges can and will make use of protective orders to shield litigants from waiving privilege if they inadvertently produce privileged documents -- and the high cost of production and the volume of ESI militates in favor of entering an order. In two recent cases, nonwaiver agreements arose only after a series of other discovery disputes.
April 08, 2011 at 12:00 AM
1 minute read
By significantly relying on the “intent” behind Federal Rule of Evidence 502, two recent decisions hold that federal courts may enter, without party agreement, an order requiring parties to return inadvertently produced privileged documents without waiver of privilege.
The potential for federal courts to impose such “nonwaiver agreements” on non-consenting parties is now a reality.
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