Michael Correll


Federal Rule of Evidence 502 promised to change American litigation for the better. It was heralded as a solution to the gross inequity and spiraling litigation costs associated with the painstaking, cumbersome, and largely wasteful document reviews necessary to protect the attorney-client privilege. And in some measure, it succeeded. It has brought uniformity, predictability, and equity to issues of inadvertent disclosure and subject matter waiver. But a largely overlooked provision of the rule promises even bigger, and more troubling changes. Federal Rule of Evidence 502(d) authorizes district courts to enter discovery orders protecting parties from the waiver consequences normally attached to sharing privileged materials. This new power, however, was not meaningfully circumscribed by Congress. Instead, Rule 502(d)'s plain language appears to authorize everything from court sanctioned “claw back” and “quick peek” agreements to wholesale voluntary disclosures. What is more, once a district court authorizes a disclosure, subsequent parties and even state courts are bound by the district court's decision. This Article examines the development and early application of Rule 502(d) as well as its underlying rationale in an effort to address some of the potential benefits and consequences attendant to such a far-reaching – even paradigm changing – evidentiary rule. It finds that, while the new rule could promote more efficient litigation, Rule 502(d) orders may ultimately bring about little in the way of cost savings, erode the attorney-client privilege, and further complicate modern discovery practice.

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