There are two types of federal-court litigators: those who understand the importance of getting a 502(d) order and those who don’t. This article is geared toward making sure that all litigators join the ranks of the former category—because no one wants to accidentally waive privilege (or other similar protection). A 502(d) order is essential in any dispute, particularly those with large amounts of data, and such an order can be put together in the same amount of time it will take you to read this article.

Federal Rule of Evidence 502 was enacted in 2008 to help with the ever-increasing number of documents associated with each lawsuit—thanks mostly to electronic records—and the related privilege implications. With more and more documents, more and more privilege review is required, and, prior to Rule 502, privilege could be waived for any documents produced to the opposing party, or, worse still, the inadvertent production of a single document could result in a subject matter waiver of all protected documents. The safest path to avoid a potentially catastrophic waiver, therefore, was to make sure the privilege review was perfect—an insanely expensive task. To avoid drastic privilege waivers and reduce the costs of privilege reviews, Rule 502 was designed to provide a standard solution and to put an end to different courts handling inadvertent production of privileged documents differently.