According to Rule 502(d), which falls under the “Attorney-Client Privilege and Work Product; Limitations on Waiver” section of the Federal Rules of Evidence (FRE), “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.” FRE 502(d) was created, according to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, in recognition of the fact that “the current law on waiver of privilege and work product is responsible in large part for the rising costs of discovery, especially discovery of electronic information.”
The idea behind FRE 502(d) is straightforward. It provides additional protection in case parties inadvertently produce privileged information. Many commenters have expressed confusion as to why FRE 502(d) has not been more widely employed, considering the benefits from the standpoints of efficiency (less time and resources spent on privilege review) and quality (less potential for damage from the inadvertent production of privileged documents). U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York believes the order “is still used in only a small percentage of cases” despite the fact that in certain scenarios, “it is malpractice for lawyers not to at least consider asking for a 502(d) order.”
