Federal Rule 502(d) is an important and, to date, underutilized tool in a federal litigator’s discovery arsenal.
It can provide predictability and valuable protections to producing parties, limiting the costs of exhaustive preproduction privilege review and minimizing disruptions. Federal litigators should take heed of a novel provision in Federal Rule of Evidence 502 that can significantly impact the logistics and costs of parties’ production and use of documents and electronically stored information (“ESI”) during litigation.
Enacted in September 2008, Federal Rule of Evidence 502(d) allows a district court—with or without parties’ consent—to enter an order requiring parties to comply with a nonwaiver or “clawback” provision pertaining to the disclosure of communications or information covered by the attorney-client privilege or work-product doctrine.1 A nonwaiver or clawback provision will typically “undo” a document production, and allow a party to seek the return of privileged documents that were produced to the opposing party without waiver of any privileges applicable to the produced documents, and often regardless of the amount of care taken by the producing party.2 Rule 502(d)’s nonwaiver protections are significant because they extend beyond the pending litigation to other federal or state proceedings.