The Sedona Conference Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders for Non-Waiver of Privilege: eDiscovery Best Practices

The Sedona Conference® (TSC) and its Working Group 1 on Electronic Document Retention and Production (WG1) has recently published the Public Comment Version of its Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders for non-waiver of privilege.  And you need to hurry if you want to get your public comment in, as time is running short!

This Commentary is intended to encourage more robust use of Rule 502(d) orders for non-waiver of privilege. More than 12 years since the adoption of Rule 502 in 2008, there remains an apparent misunderstanding of the differences between Rule 502(d) and Rule 502(b), resulting in the slow adoption of Rule 502(d) orders as a standard in federal litigation. The Commentary attempts to clarify the confusion regarding Rule 502(d)’s protections and limitations while also providing guidance in addressing certain challenges presented with using 502(d) orders.  As explained in The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production:

Rule 502(b) establishes a uniform approach in the federal courts to determine whether an inadvertent production results in waiver, and if so, the scope of the waiver. However, the burden of asserting and proving inadvertence lies with the responding party and that burden can require substantial effort and documentation. Moreover, given the multiple factors to be considered and the discretion of courts in weighing the factors and the evidence presented, both waiver and its scope remain uncertain. Parties can reduce the burdens and eliminate many of these uncertainties by asking the court to enter a Rule 502(d) order.

So, why would you NOT enter a Rule 502(d) order for non-waiver of privilege?  Beats me.

The Commentary contains six sections (including the Introduction, Comparison of Rule 502(b) And Rule 502(d), The Benefits of Rule 502(d) Orders, Use of Rule 502(d) Orders, Using Rule 502(d) Orders to Promote Certainty And Clarity During Privilege Disputes and the Conclusion).  It also includes three appendices, including a Model 502(d) order and a grid identifying which District Courts have model 502(d) orders (with links to each!) in a 49-page PDF document!

Just last week, I covered a dispute over a 502(d) order in this case, which should be fun to discuss in our EDRM eDiscovery Case Law webinar on August 18th!

Thanks to the Hon. Andrew Peck (ret.), who was also one of the Editors-in-Chief and Steering Committee Liaisons for this Commentary, I found out about it yesterday.  This version of the Commentary is open for public comment through August 1, 2021, and suggestions for improvements are welcome. After the deadline for public comment has passed, the drafting team will review the public comments and determine what edits are appropriate for the final version. Please send comments to comments@sedonaconference.org.

You can download a copy of the Public Comment Version of the Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders here (login required, which is free).

So, what do you think?  Do you use Rule 502(d) orders in Federal cases for non-waiver of privilege?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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