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A recent case confirms that the structure of Federal Rule of Evidence (FRE) 502 continues to confound litigants (and that lawyers can argue any side of an issue, even within the same case). FRE 502 governs inadvertent disclosure of privileged materials and permits court-ordered clawback arrangements by which litigants may clearly establish and tailor the conditions under which privilege will be deemed waived by inadvertent disclosure. In Rajala v. McGuire Woods,1 a party profited from the existence of an order issued pursuant to FRE 502(d) that it had actually opposed at an earlier stage of the case.

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