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Rule 502(d) Orders: The Most Effective and Underused Protection against Privilege Waivers

Rule 502(d) Orders: The Most Effective and Underused Protection against Privilege Waivers

by PLC Litigation
Originally Published on 05 Mar 2013 • USA (National/Federal)

This Legal Update highlights the advisability of entering into a Rule 502(d) order under the Federal Rules of Evidence (FRE), which allows parties to provide for the return of privileged documents produced during discovery without fear that the disclosure waives the attorney-client privilege or work product protection. Surprisingly, Rule 502(d) orders are currently underused by federal court practitioners, despite being favored by federal judges.

FRE 502 was enacted in 2008 in response to widespread complaints that the cost of protecting against waivers of attorney-client privilege or work product protection during discovery has become prohibitive because of the concern that even an inadvertent or insubstantial disclosure waives protected communications or information (see Advisory Committee Notes to FRE 502), particularly in cases involving e-discovery, which may encompass a large number of documents. Rule 502(a) and (b) explain under what circumstances the unintentional disclosure of privileged information does and does not constitute a waiver of privilege.
Under Rule 502(d), however, the court may issue an order providing that a party’s disclosure of documents protected by the attorney-client privilege or work product protection does not waive the privilege (unless there was an intent to waive the privilege). According to the Advisory Committee notes, this is true even when a party produced documents without conducting any screening for privileged material (see Advisory Committee Notes to FRE 502(d)).
Rule 502(d) order is a unique discovery tool because:
  • The no-waiver effect also applies in other federal and state court proceedings.
  • The parties may incorporate into the order a specific and detailed agreement regarding its scope and effect in the litigation.
  • Privileged documents must be returned to the disclosing party “irrespective of the care taken by” the party in reviewing them prior to production.
  • The court may issue the order sua sponte, without the parties’ agreement.
(FRE 502(d) and (e) and Advisory Committee Notes to FRE 502(d).)
Judges favor Rule 502(d) orders because they are designed to reduce the cost of privilege review and allow parties to review and produce documents expeditiously and without lengthy and expensive motion practice regarding potential waivers of privilege. Recently, several judges have expressed their approval of Rule 502(d) orders and relied on them to find that a party’s disclosure of privileged documents did not waive the attorney-client privilege or work product protection. For example:
  • Magistrate Judge Andrew Peck of the United States District Court for the Southern District of New York opined that it is malpractice to not seek a Rule 502(d) order from the court before the commencement of document discovery (see View from the Bench: Judges on E-Discovery at LegalTech Day Two, Law Technology News, Evan Koblentz (Jan. 31, 2013)).
  • In Chevron Corp. v. The Weinberg Group, the court entered a Rule 502(d) order allowing the defendant to knowingly produce privileged materials without waiving any privileges regarding the subject matter of the documents in any proceeding (Misc. Action No. 11-409, at *1 n.1 (D.D.C. Oct. 26, 2012)). Magistrate Judge John M. Facciola wrote that he was “troubled that the [defendant] has just now discovered Rule 502(d), the use of which may have prevented the protracted litigation and discovery battles that have plagued this case for the past two years.”
  • In Rajala v. McGuire Woods, LLP, the court held that an inadvertently produced document did not waive privilege and could be taken back by the producing party (clawed back) because the court had entered a Rule 502(d) order before the disclosure. The court determined that the terms of the Rule 502(d) order, and not the provisions of Rule 502(a) and (b), governed the handling of inadvertently produced documents and noted that the purpose of the order was to reduce the time and costs involved in a document-by-document privilege review (No. 08-cv-2638, , at *5 (D. Kan. Jan. 3, 2013)).
  • In Brookfield Asset Management, Inc. v. AIG Financial Products Corp., the court held that the Rule 502(d) order issued by the court before the defendant’s production of privileged documents gave the defendant the right to claw back those documents “no matter what the circumstances giving rise to their production were” (No. 09-cv-8285, , at *1 (S.D.N.Y. Jan. 7, 2013)).
For an example of a claw-back provision that parties may incorporate into a confidentiality order or an FRE 502(d) order, and for additional information on Rule 502(d) generally, see Standard Clause, Privilege Waiver Clause with Claw-Back Provision.

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END OF DOCUMENT

RESOURCE ID 5-524-7065DOCUMENT TYPE Legal update: archive

PRODUCTSPLC US Federal Litigation, PLC US Law Department

© 2017 THOMSON REUTERS. NO CLAIM TO ORIGINAL U.S. GOVERNMENT WORKS.

 

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‘The Suffering Is Staggering.’ Victims Could Get $4.1 Million After Needless Cancer Treatments via TIME

(DETROIT) — An expert is recommending approval of $4.1 million in claims, including $2rodwin million in funeral costs, filed by victims of a Detroit-area doctor who committed fraud by putting hundreds of patients through needless cancer treatments.

Randi Roth gave an update Tuesday to a judge who is overseeing the case of Dr. Farid Fata. She said 81 percent of 741 claims are fully or partly eligible for restitution.

Fata is serving a 45-year prison sentence for fraud, money laundering and conspiracy. He admitted putting patients through grueling chemotherapy — even when they didn’t have cancer.

Fata’s victims can seek reimbursement for funeral costs, remedial health care and mental health treatment. Out-of-pocket costs paid to the doctor and his clinics are also eligible for repayment.

Pain and suffering and lost wages, however, aren’t covered.

“The suffering is staggering,” said Roth, an attorney in St. Paul, Minnesota, who specializes in deciding claims in large-scale litigation. “All of us want to help as much as possible but the law is strict.”

Final approval in the months ahead rests with U.S. District Judge Paul Borman. The restitution process includes a way for patients or their family to appeal if Roth determined a claim wasn’t eligible.

“This is a huge situation with tragic consequences. I’m going to be on top of it,” Borman said.

The judge said patients and families are first in line for restitution, followed by insurance companies and the federal government’s Medicare program.

Outside court, Teddy Howard, 57, of suburban Detroit said he’s frustrated. He said his claim has been rejected because his doctors won’t certify that some of his subsequent health care was related to the harm caused by repeated doses of chemotherapy ordered by Fata.

Howard said he had a liver transplant and has also lost eight teeth.

“I didn’t think I’d be crawling around, begging. This is crazy,” he said.

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(DETROIT) — An expert is recommending approval of $4.1 million in claims, including $2 million in funeral costs, filed by victims of a Detroit-area doctor who committed fraud by putting hundreds of patients through needless cancer treatments. Randi Roth gave an update Tuesday to a judge who is overseeing the case of Dr. Farid Fata.…

via ‘The Suffering Is Staggering.’ Victims Could Get $4.1 Million After Needless Cancer Treatments — TIME

Patient Hospital Rights via WTTV

INDIANAPOLIS, Ind. — Questions, accusations, and malpractice claims all surround a neurosurgeon who practiced in central Indiana for decades.

According to patients, Dr. John T. Cummings abruptly left Community Health Network two years ago with no explanation.

Some patients just want to know what happened to their neurosurgeon, but others contacted CBS4 Problem Solvers with their concerns, so we started investigating.

Former patient Lisa Bryant stepped forward first, saying she wants to know the truth and she filed a medical malpractice claim with the Indiana Department of Insurance against Cummings and Community Health Network.

“We had a connection. … I thought he was a very nice man,” Bryant said.

Bryant first saw Cummings for leg and back pain in 2013. She said pretty quickly, he told her surgery was her best option.

“I felt comfortable,” Bryant said.

Coming out of that surgery, though, Bryant said her condition worsened and she underwent more surgeries, enduring more pain that still continues to this day.

“It’s bad. Some days I wake up, three or four o’clock in the morning, I cry. It hurts,” Bryant said.

It’s that pain, and the questions Bryant said still linger, that caused her to reach out. Bryant said in the midst of her treatment, Cummings left Community Health with no explanation.

“I was really thinking this is all normal, and it’s not,” Bryant said.

CBS4 Problem Solvers found that Bryant is not the only patient with questions, and in some cases, accusations.

The Indiana Department of Insurance posts medical malpractice claims on a public database online. In the last four years, 15 patients have filed claims against Cummings. Two of those cases have since been dismissed.

Randy Stohler filed one of the now-dismissed cases. His sister, Teresa Knight, said her family couldn’t see a path forward with the claim after Stohler died from a heart attack earlier this year.

“It is hard, we do talk about him a lot, what if? He has a daughter and he’s got two very young granddaughters,” Knight said.

Knight said she was with her brother for a spinal surgery in June of 2015, and a year later, when he decided to take action.

“We were sitting at the house one day and kind of talking. He says, ‘You know Teresa … I think I need to see an attorney,’” Knight said.

Stohler’s family voluntarily dismissed his claim after his death, but 13 cases against Cummings remain active.

Those cases vary widely in how much detail patients reveal in their complaints, but many patients describe undergoing complicated spinal surgeries. More than one accuse Cummings of performing “unnecessary” surgery or going “directly to surgery” instead of seeking “conservative treatment.”

Other patients describe “severe pain” and the need for “additional” procedures or corrective surgeries.

It’s important to note that medical malpractice claims are common and neurosurgery is a field where the risk of surgery can be incredibly high. A study published in the New England Journal of Medicine ranked neurosurgery as the number one field for lawsuits, with nearly 20 percent of all neurosurgeons facing a malpractice claim each year.

CBS4 Problem Solvers wanted to get an explanation, but Community Health Network declined our request for an interview and refused to answer multiple questions.

A spokesperson for the hospital system would only confirm Cummings’ dates of employment, which started in 2010 and ended on December 10, 2015.

In Indiana, medical malpractice claims must be reviewed by a panel of three doctors before a lawsuit can proceed in court. Most cases take years to resolve.

Only one panel has convened in a case against Cummings since 2014. This August, that panel came to the “unanimous opinion” that he and Community Health Network “failed to comply with the appropriate standard of care.” The case involved a woman who said Cummings “improperly placed hardware” in her spine during a surgery.

Additionally, an earlier 2011 case alleging that a piece of equipment “entered the spinal canal” during surgery, causing the patient to be permanently disabled, was allowed to go forward based on a 2014 panel decision.

That case, however, was instead settled for $1,000,000, a month after Cummings left the hospital.

Michael Ellington had no idea he would be one of Cummings’ last patients. After surgery in December 2015, Ellington said he tried to get in touch with the doctor about his pain.

Ellington later received a letter, telling patients “effective immediately, Dr. John T. Cummings will no longer see patients at Community.”

Ellington said another doctor diagnosed him with a spinal fluid leak and he underwent a second surgery.

“I haven’t been the same since,” Ellington said.

It’s unclear whether the claims, and their timing, are linked to Cummings’ parting from Community. The surgeon faced more than a dozen malpractice claims prior to 2014 and a majority were dismissed, or medical panels found no malpractice.

There are also patients who say they received great care from the surgeon. One told Community Health Network on Facebook, “You lost a top notch surgeon … (who) saved my back and kept me walking.”

Another patient even created a Facebook group dedicated to search for Cummings after his departure, saying “he remains undoubtedly one of the best neurosurgeons in Indianapolis.”

Cummings was also featured as a “Top Doctor” in Indianapolis Monthly magazine in 2013 and 2015.

Hospital tax records show that in 2011, Cummings was one of Community Health’s highest paid physicians, making more than $1.2 million.

What is clear, is that many patients want to know what happened to Cummings; but in the case of Bryant, Ellington, and Knight, it’s because they say they’re concerned.

“We have no idea, but certainly there is a problem,” Knight said.

“Definitely I believe that I’m not the only one,” Bryant said.

CBS4 Problem Solvers tried to find Cummings to get his side of the story. He appeared to still be living in the area, and a woman who identified herself as his wife said via Facebook that he had not been practicing because of what she called an “exclusive clause” with Community Health Network, which ends next month, exactly two years after his last day.

Lawyers for Cummings did not return repeated requests for comment.

Even though a medical panel found Cummings responsible in one case in August, they also recommended his name not be forwarded to the Medical Licensing Board for fitness to practice.

The board renewed Cummings’ Indiana medical license a few weeks ago.

CBS4 Problem Solvers wants to hear from patients, whether you’ve had a good or bad experience. You can contact us at ProblemSolvers@cbs4indy.com or (317) 677-1544.

INDIANAPOLIS, Ind. — Questions, accusations, and malpractice claims all surround a neurosurgeon who practiced in central Indiana for decades. According to patients, Dr. John T. Cummings abruptly left Community Health Network two years ago with no explanation. Some patients just want to know what happened to their neurosurgeon, but others contacted CBS4 Problem Solvers with…

via Patients search for neurosurgeon who abruptly left major hospital system — CBS 4 – Indianapolis News, Weather, Traffic and Sports | WTTV