Given the sheer volume of electronic information stored by organizations today, modern civil litigations now involve the production of thousands, if not millions, of documents.¹ As the breadth and volume of discovery increase, parties' ability to effectively and efficiently conduct privilege review—identifying and excluding privileged information from a document production—becomes vastly more difficult. As one court succinctly put it, “[w]here discovery is extensive, mistakes are inevitable.”²

Federal Rule of Evidence (FRE) 502 seeks to address the problem of inevitable mistakes and the considerable costs that parties incur attempting to avoid them. In effect since 2008, FRE 502 attempts to reduce the costs of litigation by lowering the stakes of production. Specifically, the rule, inter alia, resolves conflicting common-law doctrine, whereby the inadvertent disclosure of documents could result in the automatic waiver of privilege in some jurisdictions.³ FRE 502(b) harmonizes the common-law rule and specifies that a party who inadvertently produces privileged material does not waive privilege with respect to these documents, provided that the party who produced them took “reasonable steps” to prevent their disclosure.⁴

FRE 502(d) is even more sweeping. Under that provision, parties may ask a court to enter an order specifying that the parties' production of privileged material does not constitute waiver, even if the parties fail to take reasonable steps to prevent its disclosure.⁵ In other words, by seeking the entry of an FRE 502(d) order, parties can override the default rule set forth in FRE 502(b) and “claw back” any privileged documents disclosed without the need to show the reasonableness of the parties' privilege review.⁶