Pitfalls of 502(d) Orders

Rule 502(d) orders provide protection against arguments that parties waive the attorney-client privilege or the work product doctrine after mistakenly producing such documents in discovery. Since 2008, when rule 502 became effective, 502(d) orders have allowed parties to litigation to focus on the merits rather than squabbling over privilege. But there are pitfalls, especially for requesting parties, writes Philip Favro in a blog on the Driven site. The burdens of a privilege review could shift to the requesting party under a non-waiver order, particularly when a requesting party receives voluminous productions from a producing party. Under 502(d), a requesting party must isolate these documents and return them to the other side regardless of whether it identifies the documents or they are identified by the producing party. Another drawback is the potential for disruption at deposition, in motion practice, or at trial. Without a reasonable limitation on the right to clawback privileged information, a 502(d) order may allow the producing party to interfere with the requesting party’s efforts to litigate its claims or defenses.