Academic journal article Missouri Law Review

The Troubling Ambition of Federal Rule of Evidence 502(d)

Academic journal article Missouri Law Review

The Troubling Ambition of Federal Rule of Evidence 502(d)

Article excerpt

ABSTRACT

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 "clawback" and "quickpeek" 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.

I. INTRODUCTION

An end to spiraling discovery costs. (1) No more inadvertent waiver. (2) The final days of the much-dreaded subject matter waiver. (3) Federal Rule of Evidence 502 has been heralded as the legislative innovation that could bring an end to all of these common and costly afflictions plaguing American litigation. After two decades of largely unsuccessful tinkering with the Federal Rules of Civil Procedure, (4) Congress believed that it had struck upon a novel and effective solution--shift the focus from how information is shared in discovery to how it is actually used as evidence in litigation. (5) But what if this shift portends even more significant structural changes to the fundamental operation of federal trial courts? The plain language of Rule 502(d) appears to authorize courts to protect even voluntary disclosures of attorney-client privileged information where such an authorization best serves the immediate needs of a pending matter. (6) Are the possible consequences of this new judicial authority--affecting everything from the types of information shared in discovery to the forms of evidence that can be admitted at trial to the troubling consequences of shielding trial proceedings from public view--worth the purported cost-savings that brought about this shift in the first place?

These claims may, at first blush, seem alarmist. After all, Rule 502(d) a very brief, forty-six-word "enabling" provision (7)--sits at the end of a fairly narrow rule clearly targeted at issues regarding inadvertent disclosures and productions in government investigations. (8) Further, Rule 502(d) limits itself to the attorney-client privilege and work product protection. (9) But in the short time since Rule 502 went into effect, it has already overleaped these limitations. Federal courts around the country immediately embraced the new rule with open arms in the two years following its effective date, and many of these courts have already begun casting a hopeful eye toward expanding the rule's reach to resolve a host of common problems with both large- and small-scale litigation. (10) In the most striking examples, courts have used Rule 502(d) to justify compelled disclosures of privileged documents (11) and even to authorize purely voluntary disclosures between adverse parties. (12) These early cases mark a truly radical shift away from more than a century of privilege jurisprudence. …

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