The Effective Use Of Rule 502(d) In E-Discovery Cases

Previously published in The Legal Intelligencer on 25 October 2011

Used properly, Federal Rule of Evidence 502, and particularly Rule 502(d), can be one of the most valuable assets available to e-discovery counsel in dealing with the attorney-client and attorney work product privileges during review and production of electronically stored information (ESI). Carefully crafting a comprehensive electronic discovery process, and memorializing the process in a court order issued pursuant to Rule 502(d), can effectively minimize the time and expense associated with privilege review and virtually eliminate the potential for waiver of the privileges resulting from disclosure during the production process. Moreover, the privilege protection extends not only to the pending litigation, but also to any other federal or state proceeding.