The Sedona Conference: Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders, Public Comment Version

Morgan Lewis eData partner Scott Milner will participate in The Sedona Conference webinar, “Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders, Public Comment Version.” This webinar will feature members of drafting team, including Scott, who will offer key takeaways and solicit feedback and comments from the audience. 

Federal Rule of Evidence 502 was adopted in 2008 to address the “widespread complaint” that litigation costs related to the protection of privilege have become “prohibitive” and to provide parties with the means to limit the prohibitive costs of privilege and work-product review and retention. A primary means of providing this protection is through Rule 502(d), which permits parties to enter into a court order preventing waiver for privileged documents produced in a proceeding.

In practice, however, Rule 502(d) orders have been underutilized in federal litigation, in part because of a lack of understanding regarding the Rule’s potential benefits, and also due to certain challenges regarding the use of such orders, such as excessive clawback requests. The Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders encourages more robust use of Rule 502(d) orders by highlighting the benefits of 502(d) orders, clarifying confusion regarding the Rule’s protections and limits, and suggesting methods to address the  challenges presented when using such orders.