May 22, 2013 Articles

FRE 502, "Inadvertence" in Privilege Waiver, and Avoiding Malpractice

It is absolutely necessary to at least consider the implications of a 502(d) order and probably desirable to have one in almost all cases.

By Jeffrey G. Close

Federal Rule of Evidence 502 sets out circumstances and limitations on waiver of otherwise privileged communications or information disclosed in federal proceedings. FRE 502, effective in 2008, is not “new”; but, at the ABA National Institute on E-Discovery and Information Governance in January 2013, an impressive panel of federal district judges and magistrate judges noted that a surprising number of attorneys appearing before the judges were ignorant of its provisions. The panel expressed a general consensus that ignorance of the availability of “claw-back” rights under section 502(d) and a failure to adequately consider FRE 502 in federal discovery practice might be tantamount to malpractice, and could even implicate attorneys’ ethical obligations.

First, it should be noted that the panel did not say it was error not to have a FRE 502(d) order entered, only that it might be tantamount to malpractice or an ethical violation not to adequately consider whether such an order should be entered. Notably, at least one jurist noted the court’s ability to enter such an order sua sponte, and asked whether there was any good reason not to enter such an order.

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