Amid all the 2015 changes to the Federal Rules of Civil Procedure, there is one that might have gone unnoticed. It’s not a big change, comparatively speaking, just 15 extra words. And it’s not a seismic change, like the proportionality requirements, generating heated debate over how it will be implemented and how it will affect discovery. But it’s one of the changes that could have the most positive impact on your case and help you make practical sense of the Federal Rules’ proportionality and cooperation requirements. It’s the reference to Federal Rule of Evidence (FRE) 502 orders.
The reference to FRE 502 orders first appears in amended Rule 16, discussing the contents of the scheduling order: “The scheduling order may . . . include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502.” Fed. R. Civ. P. 16(b)(3)(B)(iv) (emphasis added). Another reference can be found in the discussion of what should be considered in a discovery plan under Rule 26: “A discovery plan must state the parties’ views and proposals on . . . any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502.” Fed. R. Civ. P. 26(f)(3)(D) (emphasis added).
Obviously, the amended Federal Rules are trying to draw our attention to something. So what exactly are FRE 502 orders, and why are they so important?