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Rule 502(d) Orders: The Most Effective and Underused Protection against Privilege Waivers
|Originally Published on 05 Mar 2013 • USA (National/Federal)|
This Legal Update highlights the advisability of entering into a Rule 502(d) order under the Federal Rules of Evidence (FRE), which allows parties to provide for the return of privileged documents produced during discovery without fear that the disclosure waives the attorney-client privilege or work product protection. Surprisingly, Rule 502(d) orders are currently underused by federal court practitioners, despite being favored by federal judges.
The no-waiver effect also applies in other federal and state court proceedings.
The parties may incorporate into the order a specific and detailed agreement regarding its scope and effect in the litigation.
Privileged documents must be returned to the disclosing party “irrespective of the care taken by” the party in reviewing them prior to production.
Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York opined that it is malpractice to not seek a Rule 502(d) order from the court before the commencement of document discovery (see View from the Bench: Judges on E-Discovery at LegalTech Day Two, Law Technology News, Evan Koblentz (Jan. 31, 2013)).
In Chevron Corp. v. The Weinberg Group, the court entered a Rule 502(d) order allowing the defendant to knowingly produce privileged materials without waiving any privileges regarding the subject matter of the documents in any proceeding (Misc. Action No. 11-409, at *1 n.1 (D.D.C. Oct. 26, 2012)). Magistrate Judge John M. Facciola wrote that he was “troubled that the [defendant] has just now discovered Rule 502(d), the use of which may have prevented the protracted litigation and discovery battles that have plagued this case for the past two years.”
In Rajala v. McGuire Woods, LLP, the court held that an inadvertently produced document did not waive privilege and could be taken back by the producing party (clawed back) because the court had entered a Rule 502(d) order before the disclosure. The court determined that the terms of the Rule 502(d) order, and not the provisions of Rule 502(a) and (b), governed the handling of inadvertently produced documents and noted that the purpose of the order was to reduce the time and costs involved in a document-by-document privilege review (No. 08-cv-2638, , at *5 (D. Kan. Jan. 3, 2013)).
In Brookfield Asset Management, Inc. v. AIG Financial Products Corp., the court held that the Rule 502(d) order issued by the court before the defendant’s production of privileged documents gave the defendant the right to claw back those documents “no matter what the circumstances giving rise to their production were” (No. 09-cv-8285, , at *1 (S.D.N.Y. Jan. 7, 2013)).
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RESOURCE ID 5-524-7065DOCUMENT TYPE Legal update: archive
PRODUCTSPLC US Federal Litigation, PLC US Law Department
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A long-standing joke about lawyers is that they are actually “liars” who will take any money from you that they can. Don’t become a statistic and fuel this joke – select a lawyer that will really work for you! Read this article for tips on selecting BTR Law Firm that really knows their stuff.
Inquire about the fees that you are going to have to pay. These fees can vary greatly depending on their demand and experience, so you must know what you’re paying before choosing them. It is highly problematic to lose your attorney after your matter is already underway.
Never hire the first lawyer you come across. There are so many out there that it can be tempting to select the first one you come in contact with. Take your time and consult with a few before you make your decision. You don’t want to make the mistake of choosing the wrong one.
A good tip to remember when looking to hire a lawyer is to make sure you find a lawyer that has the necessary experience that you’re looking for. If you’re going to court soon for a criminal case, it wouldn’t make sense to bring on a divorce lawyer, you’ll need a criminal lawyer.
There is a great deal of legwork necessary in a legal case, both research and actually talking to witnesses, which will lead to the development of the presentation of your lawyer in court. That means any lawyer who tells you you’ll win up front has no idea what they’re talking about.
You should make sure you have a solid case before attacking someone in court. Keep in mind that some lawyers only have their own interest in mind and will advise you to go to court regardless of how solid your case is. Present your case to different professionals and do some research on your own before you go to court.
When meeting with a prospective attorney, ask him or her who you will primarily be talking to about your case. In some situations, lawyers give part of their caseload to a junior associate. If you feel you really connect with a certain attorney, suddenly finding out you will be working with another person may be quite upsetting. These feelings could be exacerbated if you don’t get along with the other person, too.
If you need a good lawyer for your business, use your network. You could ask your banker, partners, insurance agent or even your distributors if they know any good lawyers in the area. Do not hesitate to refer this lawyer to people you know if you have a good experience.
Never just randomly pick a lawyer out of a phone book or directory to work on your case. Since you do not know anything about a lawyer using this method, you could end up with someone who is incompetent or inexperienced. You could ask loved ones if they know of a lawyer who can help or look at online reviews.
Avoid lawyers who actively seek your business. Consider it a red flag if a lawyer solicits you after an accident without you having expressed any interest. These “ambulance chasers” tend to have sketchy business ethics, so it is best to steer clear of them. A good lawyer will have clients seeking their help, and doesn’t need to resort to this type of behavior.
A big mistake that people make is hiring a lawyer who contacts them after some sort of accident. Not only is it against the rules of professional conduct, in many states it is illegal. This is sometimes referred to as “ambulance chasing” and is frowned upon in the legal community.
If you need a specialized lawyer, ask the lawyers you are considering about their specialized training. There are seminars and additional classes lawyers can take to learn more about a specific issue. For instance, lawyers who are qualified to help you with filing for bankruptcy should be members of the National Association of Consumer Bankruptcy Attorneys.
Instead of becoming a victim who must pay high bills for little quality service, do your homework and find a reliable lawyer. You can easily find someone that will help you in the courtroom. Remember these tips next time you find yourself in a sticky situation, so you can come out on top!