November 13, 2017
As ediscovery continued to grow in the early 2000s, so, too, did the risk of inadvertently producing privileged documents. In response, in 2008, Congress enacted Federal Rule of Evidence 502(d), which allows a party to clawback any privileged or protected materials as long as there were reasonable steps to prevent the disclosure as well as to rectify it.
In 2013, U.S. Magistrate Andrew J. Peck issued a noteworthy order around Rule 502(d). The order was intended to provide the maximum protection around the rule.
In a 2016 post, Attorney Kyle Heisner for the firm Marshall Dennehey Warner Coleman & Goggin also asserted the benefit of drafting a 502(d) order and recommended particular language in the order.
“To avoid any confusion regarding what standard is to be applied, the order should not make reference to the reasonableness standard of Rule 502(b), and the term “inadvertent” should be used carefully if the parties intend the order to protect documents produced intentionally.”
Thomson Reuters has called Rule 502(d) “the most effective and underused protection against privilege waivers.” Counsel is encouraged to confidently use the protection the rule provides.