Litigators, do you seek a Rule 502(d) order in every Federal case? If not, why?
Federal Rule of Evidence 502 (“Rule 502”), which went into effect just over ten years ago, addresses the evidentiary issues arising from the disclosure of attorney-client privilege or work product information in discovery. The rule was enacted for two express purposes. This first was to provide needed conformity to inconsistent federal common law related to inadvertent disclosure during litigation, as expressed in Rule 502(b). The second was to address the costs and risks of inadvertent disclosure resulting from the advent of eDiscovery and the exploding volume of ESI. This second and more salient point is reflected in the too-often overlooked Rule 502(d), which states:
A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.
A “Rule 502(d) Order” provides producing parties with significant, material protection against privilege waiver. This includes the immediate federal litigation and “any other federal or state proceeding.” Moreover, a Rule 502(d) Order does not need to be complex. The following two paragraph model order was created by U.S. Magistrate Judge Andrew J. Peck (Ret.), stating:
Notwithstanding the significant upside to obtaining a Rule 502(d) order, and the simplicity and elegance of Judge Peck’s readily available model, parties frequently ignore Rule 502(d), and instead rely solely on Rule 502(b), either intentionally or by default.
In Re Qualcomm Litigation
An ongoing case between two powerhouse technology companies, Qualcomm and Apple, demonstrates the significant price to be paid by parties who fail to seek a Rule 502(d) order. In this federal matter before the Southern District of California (San Diego), Apple attempted to clawback hundreds documents that it claimed to be privileged and inadvertently produced to Qualcomm. Under the agreed-upon discovery order and related protective order, such assertions are expressly subject to Rule 502(b) and not 502(d). In a joint motion, the parties moved to lodge a sampling of the disputed materials with U.S. Magistrate Judge Mitchell Dembin for his review and determination.
The parties jointly filed their arguments, which focused predominately on whether the lodged documents were subject to appropriate claims of privilege, with little attention paid the issue of waiver. In particular, neither party directly addressed whether Apple’s assertion of inadvertent production and the demanded clawback satisfied the elements of Rule 502(b), notwithstanding the related language in the party’s Order Governing Discovery and the Protective Order.
Rather than proceeding to conduct the requested in camera review of the lodged documents, Judge Dembin responded to the parties by first addressing, as a threshold matter, whether Apple had waived any claims of privilege over the documents it disclosed to Qualcomm. In the absence of a Rule 502(d) Order, Magistrate Judge Dembin turned to Rule 502(b), which provides that the disclosure does not operate as a waiver if the following three conditions have been met:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).
Judge Dembin noted that Apple carried the burden of proving each of the elements of Rule 502(b) as the disclosing party seeking the clawback. However, the court found that Apple did not present any evidence in its filings on the joint motion to lodge the documents with the court related to what steps it took, if any, to prevent the disclosure of these documents as required under Rule 502(b)(2).
Having concluded that Apple failed to meet its burden of proof on the issue of waiver, Judge Dembin ordered all of Apple’s documents to be produced to Qualcomm.
In response, Apple sought relief with U.S. District Judge Gonzalo Curiel on the basis that it was not provided the proper opportunity to present arguments and evidence related to the elements of Rule 502(b). Apple additionally argued that a different court in a related case had ruled that Apple’s production of many of the same documents was, in fact, inadvertent and protected under Rule 502(b). Relying on this authority, Apple argued that the issue of waiver was not before the court and that it need only determine whether the specific documents were privileged.
In a decision filed December 18, 2018, Judge Curiel categorically rejected each of Apple’s claims and affirmed the order of Judge Dembin. As Judge Curiel summarized:
Waiver is based on disclosure; Rule 502(b) creates an exception to that. The Magistrate Judge addressed Rule 502(b) to determine whether Apple did not waive privilege. The Magistrate Judge did not err in doing so.
Had Apple and Qualcomm provided a proposed Rule 502(d) Order at the time they presented their discovery plan and protective order to the court, there would have been no need for any of this motion practice, at least regarding the question of the operation of Rule 502(b) and whether or not the disclosure of these documents by Apple constituted a waiver. Instead, both Apple and Qualcomm spent considerable money, time and effort to argue these motions, requiring both the magistrate and the district judge to expend valuable judicial resources. This is exactly what Rule 502(d) was designed to prevent. Thus we end where we began, with this question: Do you seek a 502(d) order in every Federal litigation? If not, why?
 See generally, Protecting Privilege: Let’s (not) Be Reasonable, Tara Emory (2014), available at http://www.driven-inc.com/protecting-privilege-lets-not-be-reasonable/; see also, Judge Parker Reaffirms Rule 502(d) Protections, Rejects “Quick Peek” Procedure, Philip Favro (2018), available at http://www.driven-inc.com/judge-parker-reaffirms-rule-502d-protections-rejects-quick-peek-procedure/
 Fed. R. Evid. 502(d).
 Rule 502(d) Order, Andrew J. Peck, United States Magistrate Judge (Ret.), available at http://www.nysd.uscourts.gov/cases/show.php?db=judge_info&id=928.
 In Re Qualcomm Litigation, Case 3:17-cv-00108-GPC-MDD, ECF No. 455 (Notice of Lodgment of Joint Motion for Determination of Discovery Dispute).
 In Re Qualcomm Litigation, ECF No. 163, at 40; and ECF No. 165, at 14-15 (Joint letters in support of each parties position).
 In Re Qualcomm Litigation, ECF No 641 (Order on Joint Motion for Determination of Discovery Dispute Re: Apple’s clawback of 34 documents.)
 Fed. R. Evid. 502(b).
 In Re Qualcomm Litigation, ECF No 651; and ECF 651-1 (Apple’s Notice of Motion and Objection Pursuant to Fed. R. Civ. P. 72, and related Points and Authorities).
 In Re Qualcomm Litigation, ECF No 746 (Order Denying Apple’s Objection to Magistrate Ruling).
 Id. at 8.