Rule 502(d) Orders: The Protection Most Litigants Never Ask For

What a Rule 502(d) order does

Federal Rule of Evidence 502(d) lets a federal court order that the attorney-client privilege or work-product 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." That reach beyond the case is the whole point. Under Rule 502(e), an agreement on the effect of disclosure — a clawback agreement, typically — "is binding only on the parties to the agreement, unless it is incorporated into a court order."

Rule 502(b) is a defense you have to win. A 502(d) order is a decision already made.

Without a court order, a producing party that lets a privileged document out is thrown onto Rule 502(b). That subdivision applies to a disclosure "made in a federal proceeding or to a federal office or agency," and it excuses the disclosure only if three things are true: the disclosure was inadvertent, the holder "took reasonable steps to prevent disclosure," and the holder "promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B)."

Every one of those is litigated after the fact, with your own review process as the subject. The Advisory Committee note explains that the rule "opts for the middle ground" and is "flexible enough to accommodate any of those listed factors" from the older multifactor tests — the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure, and the overriding issue of fairness. Other considerations, the note adds, include "the number of documents to be reviewed and the time constraints for production." The note also says that a party using "advanced analytical software applications and linguistic tools" in screening for privilege and work product may be found to have taken reasonable steps, and that an efficient system of records management before litigation may be relevant. All useful. All of it also means your adversary gets to litigate your review.

A 502(d) order, drafted properly, is meant to take that inquiry off the table. The Advisory Committee note to subdivision (d) says so directly: "the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party."

What the agreement cannot do

Two parties can agree to return privileged documents. They cannot agree to bind anyone else. If the same documents surface in a second suit, a regulator's investigation, or a later state-court action, the non-party pressing for them was never a signatory.

Rule 502(d) closes that gap. The Advisory Committee note states that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, "its terms are enforceable against non-parties in any federal or state proceeding." The same note makes a second point counsel routinely miss: "a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court's order." You do not need your opponent's consent to ask for one.

The drafting mistake that collapses a 502(d) order back into 502(b)

A recurring failure is not the absence of an order. It is an order that recites Rule 502(d) and then reimports Rule 502(b) two sentences later.

In Absolute Activist Value Master Fund Ltd. v. Devine, 262 F. Supp. 3d 1312 (M.D. Fla. 2017), the operative paragraph of a stipulated protective order opened "Pursuant to Federal Rule of Evidence 502(d)" and provided that disclosure without express intent to waive would not be a waiver. Its next sentence said that if a party promptly gave written notice of an inadvertent disclosure, "Federal Rule of Evidence 502 and Federal Rule of Civil Procedure 26(b)(5)(B) must apply." The court held that because there were "no limitations or exclusions in the plain language of the Order," the entirety of Rule 502 applied once the notice requirements were met — and because subdivision (b) is the only part of the rule addressing inadvertent disclosure, Rule 502(b)'s reasonable-steps standard supplied the governing test.

The court went further and flagged what it called "an apparent issue of faulty drafting": the order assumed the parties would give prompt notice but never defined "promptly," and said nothing about the procedure if the notice requirements were not met.

The producing party there kept its privilege — the motion was denied. But it got there through a motion, a response, a reply, a sur-reply, submission of the disputed documents to the court under seal, and a written judicial assessment of whether its vendor-assisted review of scanned hard-copy files had been reasonable. That is precisely the proceeding a 502(d) order is bought to avoid.

There is a related trap in the word "inadvertent." Some courts have read clawback provisions entered under Rules 502(d) and (e) to govern only inadvertent disclosures, and some have held that Rule 502(d) does not protect intentional disclosures from working a waiver. Other courts read the subdivision as not limited to inadvertence. The point is that the question is open: if your order's operative trigger is inadvertence, a production later characterized as intentional or reckless may fall outside it.

What a 502(d) order does not reach

Waiver by use, as distinct from waiver by disclosure. In Certain Underwriters at Lloyd's, London v. National Railroad Passenger Corp., 218 F. Supp. 3d 197 (E.D.N.Y. 2016), a protective order entered under Rule 502(d) provided that the parties would not waive privilege by disclosing or making available information later identified as protected. Two such documents were introduced as exhibits at a deposition. Counsel for the producing party noted that one was labeled work product and purported to reserve rights, but allowed the questioning to proceed; as to the second, no specific privilege objection was made at all. A clawback letter went out the day after the deposition ended. The court held the privilege waived, reasoning that Rules 502(d) and (e) "apply only to waiver in connection with disclosures, and say nothing of waiver by other means," and that generalized objections do not preserve the claim. Two further grounds supported the ruling: one exhibit had been produced deliberately, after a detailed review, which the court called "an explicit waiver after considered legal analysis" rather than inadvertence, and work-product protection failed separately under an earlier ruling in the case. The court also observed that Rule 502(d) was intended to make privilege and waiver issues more predictable, not to insulate parties entirely from the possibility of waiver — the Advisory Committee note states that "while establishing some exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine generally."

Confidentiality in fact. In EEOC v. George Washington University, No. 17-cv-1978 (D.D.C. June 26, 2020), the court declined to force a defendant onto a cheaper search-term privilege review. While a protective order coupled with a clawback order "may provide significant protection from waiver," the court reasoned, it remains a common-sense observation that if an adverse party is given access to privileged material, a pertinent aspect of confidentiality is lost — quoting the Sedona Conference's point that "even though a Rule 502(d) order can require return of [] privileged documents and ensure there is no waiver, once it is produced, the opposing party knows its contents." The same opinion declined to ignore the cost of document-by-document privilege review in the Rule 26 proportionality analysis merely because a 502(d) order was available. A 502(d) order protects the legal status of the document. It does not protect the information.

Privileges other than attorney-client and work product. Rule 502(g) defines the rule's coverage: "attorney-client privilege" and "work-product protection," and nothing else. The Advisory Committee note to that subdivision is explicit that "[t]he rule's coverage is limited to attorney-client privilege and work product," and that waiver by disclosure "as applied to other evidentiary privileges, remains a question of federal common law." An order drafted to protect a deliberative-process, medical, or trade-secret claim is not doing so on the authority of Rule 502.

Disclosures that happened somewhere else. Rule 502(d) reaches disclosure "connected with the litigation pending before the court." The Advisory Committee note is explicit that subdivision (d) "does not allow the federal court to enter an order determining the waiver effects of a separate disclosure of the same information in other proceedings, state or federal," and that where a disclosure was made in a state proceeding and is not the subject of a state-court waiver order, Rule 502(c) governs instead.

The rule has also been invoked offensively. In Fairholme Funds, Inc. v. United States, 134 Fed. Cl. 680 (2017), the Court of Federal Claims ordered the government to give plaintiffs a "quick peek" at roughly 1,500 documents withheld on deliberative-process and bank-examination privilege grounds, over the government's objection. The court rested on the principle that a trial court has broad discretion to fashion discovery orders, and on the expedience of finishing jurisdictional discovery, rather than on any power conferred by Rule 502(d) itself. The government, quoting Sedona Conference commentary, argued that the rule "does not authorize a court to require parties to engage in 'quick peek' ... productions" and that compelled disclosure "forces a producing party to ring a bell that cannot be un-rung." The court noted that the government had identified only one prior case in which a quick peek was compelled over a producing party's objection. Fairholme is not the settled rule: as the George Washington University opinion records, other courts have disagreed with its reasoning and refused to compel a quick peek, on the ground that Rule 502(d) authorizes an order protecting privilege rather than one compelling disclosure of privileged material — and that court added that the text of Rule 502(d) "says nothing about the necessity or reasonableness of any particular privilege-review procedure." The point for practitioners is narrow but real: the request is not a formality, and the same rule that protects you can be raised against you.

What belongs in the order

The decisions above, and the Advisory Committee note, support a short list of things worth getting right on the page:

• An express statement that the order is entered under Federal Rule of Evidence 502(d), and that disclosure does not waive privilege or work-product protection in this or any other federal or state proceeding. Track the rule's language; the cross-proceeding reach is the benefit you are buying.
• A statement that protection applies regardless of the care taken by the producing party and regardless of whether the disclosure was inadvertent. The Advisory Committee note contemplates exactly this.
• No wholesale incorporation of "Rule 502." Cite subdivision (d) and state the standard you intend. Incorporating the rule as a whole is what pulled the Absolute Activist order back under 502(b).
• Notice and return mechanics kept separate from the non-waiver provision, so a defect in the mechanics cannot defeat the protection. Define the notice period in days rather than leaving "promptly" undefined, and say what happens if the deadline is missed.
• The Rule 26(b)(5)(B) process preserved: on notice of a claim, the receiving party must promptly return, sequester, or destroy the information and any copies, must not use or disclose it until the claim is resolved, and must take reasonable steps to retrieve it if already disclosed; it may present the information to the court under seal for a determination, and the producing party must preserve it until the claim is resolved. A non-waiver order should not become a right to claw back at will.
• A provision addressing use — objections at depositions and in filings — since the case law treats that as outside the disclosure protection.
• A statement that the non-waiver protection applies in any other federal or state proceeding and survives termination of the action; the Advisory Committee note describes such an order's terms as "enforceable against non-parties in any federal or state proceeding."
• Nothing conditioning protection on the producing party having run a particular review methodology, unless you are certain you ran it.

Ask for it at the Rule 26(f) conference

The federal rules already put this on the agenda. Rule 26(f)(3)(D) requires the discovery plan to state the parties' views and proposals on any issues about claims of privilege or of protection as trial-preparation materials, "including the timing and method for complying with Rule 26(b)(5)(A) and — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502." Rule 16(b)(3)(B)(iv) permits the scheduling order to include the timing and method for complying with Rule 26(b)(5)(A) "and any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502."

The practical case for raising it early is that the order is worth most when it exists before documents move: it settles the consequences of a mistake in advance, rather than leaving the parties to litigate a production that has already gone out. Until an order is entered, Rule 502(b) is the fallback, and Rule 502(b) is the inquiry the order is meant to displace. And because party agreement is not a condition of enforceability, an opponent's refusal to stipulate is a reason to move, not a reason to stop.

None of this substitutes for privilege review. Courts have declined to treat the availability of a 502(d) order as a reason to force a producing party onto a lighter review, and the methodology — including where analytics and generative AI now sit in document review — remains the producing party's call. What the order changes is the consequence of the mistake the review will eventually make. In matters where privilege fights are already consuming the schedule, the instinct that leads parties toward a discovery special master is a signal that the 502(d) order should already be in place.

Learn more

• Katherine Charonko, Partner and ESI Practice Group Leader, Bailey & Glasser
• David Shonka, Partner and General Counsel, Redgrave LLP; three-time Acting General Counsel of the FTC
• James Orenstein, Mediator, Arbitrator and Court-Appointed Neutral, JAMS (Hon., Ret.); former U.S. Magistrate Judge, Eastern District of New York
• Gregory M. Sleet, Neutral, JAMS (Hon., Ret.); twenty years on the U.S. District Court for the District of Delaware, seven as chief judge
• Gail Gottehrer, VP, Global Litigation, Labor & Employment, and Government Relations, Fresh Del Monte Produce, Inc.

Related reading: how to read a forensic report and authenticating social media evidence.

This article is general information about federal discovery practice, not legal advice, and it does not create an attorney-client relationship.