Big Penalty For Not Seeking a 502(d) Order

The litigation between Qualcomm and Apple presents a case in point in respect to the price paid by parties who fail to seek a Rule 502(d) order. Apple attempted to clawback hundreds of documents inadvertently produced to Qualcomm that it claimed were privileged. Under the agreed-upon discovery order and related protective order, its assertion was subject to Rule 502(b) and not 502(d). The parties jointly filed their arguments, which focused predominately on whether the documents were subject to appropriate claims of privilege, with little attention paid the issue of waiver. Rather than conducting the requested in camera review of the lodged documents, the Judge responded to the parties by first addressing, as a threshold matter, whether Apple had waived any claims of privilege over the documents it disclosed in the absence of a Rule 502(d) Order. He found that Apple carried the burden of proving each of the elements of Rule 502(b), but did not present any evidence related to what steps it took to prevent disclosure. On appeal, his decision was upheld.