Maintaining the integrity of the attorney-client privilege is the foundation of all legal work. Digitized information and eDiscovery have changed the entire landscape of information exchange. A Federal Rule of Evidence 502 order can help shield the privileged status of sensitive information following an inadvertent exchange and prevent waiver. Given how simple it is to create and how much it protects, it’s surprising to find that these orders continue to be underutilized in litigation
Clarifying Federal Rule of Evidence 502(d)
Federal Rule of Evidence 502 (FRE 502) allows parties involved in litigation and legal transactions to seek and obtain a 502 order, which safeguards certain information from being disclosed or used against the disclosing party in any other legal proceeding. The public nature of many lawsuits makes 502 orders extremely important, as they promote open and honest communication between attorneys and clients while ensuring that sensitive information stays confidential. FRE 502 is so effective that Florida State University College of Law Research Center created a toolkit to make it easier to navigate disclosures under FRE 502.
Under Rule 502(d), a federal court can order that the privilege or protection is not waived by disclosure connected with the pending litigation before the court. In other words, the disclosure does not result in a waiver in any other federal or state proceeding. The rule was designed in the hopes that it would reduce costs and provide predictability in the protection of privilege during litigation. In spite of this, it still isn’t being used enough.
Why Is Rule 502(d) So Important?
With the number of potential benefits Rule 502(d) has in litigation, many experts are at a loss as to how it has flown under the radar for so long. Many litigators assume that the default Rule 502(b) is sufficient enough to protect privileged information, but working on getting the information back under this rule actually creates more work and wastes precious time. Under 502(b), the producing party must demonstrate that the disclosure was inadvertent, reasonable steps were taken to prevent disclosure, and prompt steps were taken to rectify the error and all of this must be litigated which wastes time, resources, and money. 502(d) is much simpler. Instead of spending time and energy proving the requirements under 502(b), all you have to do is make sure the order compels the other party to immediately return and delete the information. It should also specify that any inadvertent production DOES NOT act as a waiver for any other claims of privilege.
Adding 502 Orders to Your Arsenal
502 orders have been around for quite some time, but they fulfill a critical need when attorney-client privilege is unintentionally compromised. Leveraging the benefits of Rule 502(d) saves time and resources for where they’re needed most. If you would like to discuss how you can leverage the power of a 502 order for your project, call Bright Line Counsel today at (513) 270-8444.
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