It is among the worst news a litigator can hear—privileged documents were produced to the other side by mistake. And, in the world today, where even relatively small cases routinely involve massive amounts of electronically stored data, it happens a lot. As Magistrate Judge Andrew J. Peck commented recently, “[i]n virtually every production, no matter what search method is used or how carefully a manual privilege review is conducted, some privileged material will be inadvertently produced.”1
Fortunately, there are a number of strategies available to help protect against inadvertent disclosure in the first place. But before we get to that, it is worth discussing Rule 502 of the Federal Rules of Evidence, which was enacted in 2008 to address the escalating costs of protecting against waiver of the attorney-client privilege and the work product protection.2
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