FRE 502(d) – An Underutilized "Safety Net" In Document Intensive Litigation

The inadvertent disclosure of privileged material may haunt a company for years, particularly in today's era of pattern litigation and increased collaboration within the plaintiffs' bar. Fortunately, in matters pending in federal court, this consequence can be avoided through the use of Federal Rule of Evidence (FRE) 502(d).

The attorney-client privilege is arguably "the most sacred of all legally recognized privileges." United States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997). As explained by the Supreme Court, "[i]ts purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice."Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Naturally, the importance of preserving privilege and avoiding waiver cannot be overstated. This is particularly true in the context of product liability litigation where certain documents may be repeatedly