Guarding Against Privilege Waiver In Federal Investigations

Law360, New York (September 20, 2016, 12:46 PM EDT) -- Elizabeth McGinn

Tihomir Yankov It has been well over a year since Judge Andrew Peck gently excoriated the legal community for underusing the not-so-new privilege waiver protections of Federal Rule of Evidence 502(d). He has fondly referred to it as the "Get Out of Jail Free Card" and offered that "it is akin to malpractice not to get [a Rule 502(d)] order."[1] It is a powerful hand indeed: a Rule 502(d) order can protect litigants against privilege waiver without having to prove that they have taken reasonable steps to prevent an inadvertent production of privileged documents. While Judge Peck's remarks may...

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