FRE 502 in Practice –The First Year in Review

Hon. Joseph R. Slights, III

Hon. David J. Waxse

Patrick Oot

&

Leslie WhartonModerator

Advisory Committee Notes (revised 11/28/2007)

“The current law on waiver of privilege and work product is responsible in large part for the rising costs of discovery, especially discovery of electronic information. In complex litigation the lawyers spend significant amounts of time and effort to preserve the privilege and work product. . . . Moreover, an enormous amount of expense is put into document production in order to protect against inadvertent disclosure . . . .”

Rule 502(a): Disclosure made in a Federal proceeding or to

a Federal office or agency; scope of waiver

When the disclosure is made in a Federal proceeding or to a Federal officer or agency and waives the attorney-client privilege or work product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: 1) the waiver is intentional; 2) the disclosed and undisclosed communications or information concern

the same subject matter; and 3) they ought in fairness to be considered together

Committee Notes to 502(a) – The rule provides that a voluntary disclosure in a federal proceeding or to a federal office or agency, if a waiver, generally results in a waiver only of the communication or information disclosed; a subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary . . . . The rule rejects the result in In re Sealed Case, 877 F.2d 976 (D.C.Cir. 1989), which held that inadvertent disclosure of documents during discovery automatically constituted a subject matter waiver.

502(b) Inadvertent disclosure When made in a Federal proceeding or to a Federal office or agency,the disclosure does not operate as a waiver in a Federal or State proceeding if:

1) The waiver is unintentional; 2) The holder of the privilege or protection took reasonable steps to

prevent disclosure; and 3) The holder promptly took reasonable steps to rectify the

error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Inadvertent Disclosure:Committee Notes to 502(b) –

Factors (none of which are dispositive) in determining whether reasonable steps have been taken include:– Reasonableness of precautions taken– Follow up on indications that a protected communication or

information has been disclosed– Time taken to rectify the error– Scope of discovery– Extent of the disclosure– Fairness– Use of advanced analytical software applications and linguistic tools

in screening– Implementation of efficient system of records management before

litigation

When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:

1) Would not be a waiver under this rule if it had been made in a Federal proceeding; or

2) is not a waiver under the law of the State where the disclosure occurred

502(c) -- Disclosure made in a State proceeding

502(c) -- Committee Notes

Waiver in State Court Proceedings:• Where state and federal law are in conflict, “the proper

solution for the federal court is to apply the law that is most protective of privilege and work product.”

• “A state court order finding no waiver in connection with a disclosure made in a state court proceeding is enforceable . . . in subsequent federal court proceedings.”

Waiver as to Third Parties

502(d) Controlling effect of a court order – A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.

502(e) Controlling effect of a party agreement – An agreement on the effect of a disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

502(f) Controlling effect of this rule

Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal-court annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.

State Court Clawback Order (1)

• WHEREAS, the Parties believe that it will promote the efficient, just, and economical resolution of this Litigation to supplement the existing Confidentiality Stipulation by entering into this stipulation and order (the "Clawback Order") regarding the exchange of certain Discovery Material;

• WHEREAS, based upon a good faith belief that such procedures are likely to generate documents relevant and/or responsive to the discovery requests in this Litigation, the Parties have previously agreed to limit their respective document collection and production efforts to certain document custodians and repositories, and further agreed to utilize electronic keyword search terms to identify potentially relevant documents from the foregoing document sources;

State Court Clawback Order (2)

• WHEREAS, despite these limitations on the scope of discovery, the volume of documents that are likely relevant and/or responsive to the discovery requests in this Litigation is of a magnitude that a document-by-document review of documents prior to production would cause substantial delay and would be unduly burdensome on the Producing Parties;

• WHEREAS, the Parties believe that permitting the production of documents pursuant to this Clawback Order, without the necessity of a document-by-document review by the Producing Party prior to production, will materially reduce the cost and duration of discovery, and the attendant burdens on the Parties;

State Court Clawback Order (3)

• WHEREAS, adopting the approach set forth herein may result in the inadvertent disclosure of Discovery Material that is subject to a claim of attorney-client, work product and/or other applicable privilege or immunity (collectively, "Privileged Discovery Materials"), as well as the disclosure of other materials irrelevant to this Litigation ("Irrelevant Materials"); and

• WHEREAS, although Delaware has not adopted a rule of evidence similar to Federal Rule of Evidence 502, the Parties understand and stipulate that disclosure of Privileged Discovery Materials pursuant to this Clawback Order will not prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorney-client, work product or other applicable privilege or immunity, under Delaware law;