The explosion of electronically stored information (ESI) led to significant amendments to the Federal Rules of Civil Procedure (FRCP) in 2006, and again in 2015, to help ease the burden and costs of e-discovery resulting from so much data. The 2006 FRCP amendments, however, did not lessen the burden of reviewing the high volume of ESI for attorney-client privileged communications or protected work product. With the proliferation of ESI in document productions, the question is not whether any privileged or protected information will be disclosed, but rather how much will be disclosed and how damaging that disclosure may be?

In 2008, Federal Rule of Evidence (FRE) 502 was enacted to address this problem by reducing the risks and costs of producing voluminous ESI. Under FRE 502(d), a federal court may order that the disclosure of privileged or protected information in a case does not waive the privilege in the case or in any other federal or state proceeding (FRE 502(d)). Additionally, orders under FRE 502(d) do not impose a duty of care to protect the attorney-client privilege or work product when producing documents (FRE 502 Advisory Committee Notes). Although in most cases, parties still review documents for privilege, FRE 502(d) permits parties to tailor their scope of privilege review based on a cost-benefit analysis and the likelihood that sensitive, privileged, or protected documents are among the documents selected for production.

Despite the significant protection and flexibility afforded to litigants using FRE 502(d) orders, parties rarely use them. The Sedona Conference recently issued the final release of The Sedona Conference Commentary on Protection of Privileged ESI to encourage litigants to use FRE 502(d) orders and to "breathe some needed life into the understanding and use of Rule 502" (The Sedona Conference Commentary on Protection of Privileged ESI, at 3).

The December 2015 Amendments to the FRCP also attempt to mainstream the use of FRE 502(d) orders by specifically permitting parties to request a FRE 502(d) order in their:

(FRCP 16(b)(3)(B)(iv) and FRCP 26(f)(3)(D).)

The judiciary and commentators fully support the use of FRE 502(d) orders (see, for example, The Sedona Conference Commentary on Protection of Privileged ESI; Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 101 (D.D.C. 2012) ("I will gladly issue, on its application, an order pursuant to Rule 502(d) of the Federal Rules of Evidence that would alleviate any concern it has about such a disclosure constituting a waiver in any other state or federal proceeding.").

Now, it's time for practitioners to do the same. Practical Law's Standard Document, FRE 502(d) Order is a sample FRE 502(d) order, with helpful explanations and drafting tips, to get started.