Federal Rule of Evidence 502(d) permits a court to order that privilege is not waived by disclosure in the proceeding, and that the order is binding in other federal and state proceedings.
Unlike Rule 502(b), it does not require any showing that reasonable steps were taken.
Alternative Names:
502(d) Order, Non-Waiver Order
Why it Matters?
This is among the cheapest and most valuable protections available in electronic discovery, and it is still routinely overlooked. A 502(d) order eliminates the reasonableness inquiry that inadvertent disclosure analysis otherwise requires, protects against third parties asserting waiver in other cases, and can justify a less exhaustive and less expensive privilege review. It should be included in every ESI protocol as a matter of course.
Frequently Confused with
Related terms
Frequently asked questions
Why is a 502(d) order better than a clawback agreement?
Does it require showing reasonable precautions?
