Discovering E-Discovery: FRE 502(d) Orders

Federal Rule of Evidence was signed into law on September 19, 2008.  The rule applies to the scope of waiver of voluntary and inadvertent disclosures (1) in federal proceedings and (2) to federal offices and agencies.  Congressional purpose in enacting Rule 502 was to minimize the cost of civil litigation, particularly e-discovery, in federal proceedings while minimizing broad waivers of privilege in federal and state proceedings. The effect of a 502(d) order in a federal proceeding is that the disclosure will not act as a waiver in the pending litigation or in any other federal or state proceeding.  An agreement between the parties on the effect of of disclosure in a federal proceeding is binding only on the parties to the agreement unless it is incorporated into a 502(d) order.  Rule 502(d) applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings in the circumstances set out in the rule.  It even applies if, in a diversity action, state law provides the rule of decision.  It is an extremely useful tool that should be discussed with the client in any federal litigation.