So many topics, so little time. Craig Ball’s latest blog post from last week tells us to “tailor FRE 502(d) orders to the case”. Here’s why.

In Craig’s post on Ball in Your Court titled (wait for it!) Tailor FRE 502(d) Orders to the Case and available here, he discusses how “recent litigation where I serve as Special Master prompted me to revisit the rule with Proustian ‘fresh eyes,’ uncovering insights I hope to share here”.

Craig also notes that he has “long run with the herd in urging lawyers to ‘always get a 502 order,’ never underscoring important safeguards against unintended outcomes; but lately, I had the opportunity to hear from experienced trial counsel on both sides of a FRE 502 order negotiation and have gained a more nuanced view.

To set the stage for non-litigators, Craig provides a brief discussion of privilege, how FRE 502 applies exclusively to the attorney-client privilege and work-product protection, the difference between FRE 502(b) and 502(d), and the benefits of a 502(d) order. He also discusses The Sedona Conference^® Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders (available here which I originally covered here back in 2021), stating: “While the Sedona model offers a useful starting point, its broad language may not fit every case, necessitating tailored adjustments.”

The crux of Craig’s post to tailor FRE 502(d) orders to the case is best stated here: “It seems clear to me Courts can afford parties the multijurisdictional and other protections of 502(d) without unnecessarily subjecting litigants and the Court to an outsize risk of abuse in the timing and circumstances of clawback. That is; by clarifying matters within the 502(d) order, we forestall disputes.”

The good news for Craig was that the parties worked out their issues and settled on language for the FRE 502(d) order that was tailored. Check out his post here to see the potential issues with FRE 502(d) orders when they are not thoughtfully tailored to the case.

I will say that one thing he said piqued my interest: “The extreme (and perennially hypothetical) contention was that a federal court would enter a 502(d) order whereby a recalcitrant party would be directed to produce material without being afforded an opportunity to undertake a privilege review because 502(d) would allow them to claw back privileged material without risk of waiver.  That’s a perversion of the rule, and I’ve never seen it applied in that bone-chilling way.”

I remembered that I covered a case in my old blog where there was a similar issue and found that case on eDiscovery Assistant – not exactly the scenario that Craig discusses, but close. In Fairholme Funds, Inc. v. U.S., No. 13–465C (Fed. Cl. Oct. 4, 2017), after several discovery disputes (including disputes over privilege designations) the Court ordered Defendant to provide plaintiffs with the opportunity to review the approximately 1500 documents at issue pursuant to the “quick peek” procedure authorized by Rule 502(d).

That’s a little bit different in that the defendant was forced to make these documents available against their will. I did have this case last year where the defendant proposed Craig’s exact scenario (because it would have to produce over 1.1 million documents), but the Court rejected that proposal. Could there be a case out there where a similar request was accepted by the Court? Maybe.

Regardless, Craig’s post is enlightening regarding 502(d) orders and their nuances, which is why his advice is to tailor FRE 502(d) orders to the case. Great advice!

So, what do you think? How often do you use 502(d) orders in your cases? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4o’s Image Creator Powered by DALL-E, using the term “robot lawyer getting pants hemmed by a robot tailor”. See what I did there? 🤣

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