6 Years In, Why Haven't FRE 502(d) Orders Caught On?

Law360, New York (July 24, 2014, 1:28 PM EDT) -- Substantively enacted on Sept. 19, 2008, Federal Rule of Evidence 502 resolved a conflict among the courts whether an inadvertent disclosure of a communication or information otherwise protected as privileged or work product constitutes a waiver. Rule 502(b) codified the intermediate approach to waiver and set forth a three-pronged test, establishing that a disclosure that was inadvertent and for which the producing party took reasonable precautions prior to production and reasonable steps to rectify the error post-production would not operate as a waiver in a federal or state proceeding.

Importantly, Rule 502(d) went a step further, permitting federal courts to enter...

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