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CHICAGO (AP) _ An Illinois appeals court says a woman has parental rights to a child her former wife had through artificial insemination before they divorced. The Chicago Tribune reports Tuesday the 2nd Appellate Court ruling sets a precedent for much of northern Illinois. It also applies to opposite-sex parents where one isn’t the biological…
Rule 502(d) Orders: The Most Effective and Underused Protection against Privilege Waivers
|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.
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.
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)).
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RESOURCE ID 5-524-7065DOCUMENT TYPE Legal update: archive
PRODUCTSPLC US Federal Litigation, PLC US Law Department
The row over “plagiarism” gets sillier with each passing month. I remain in a state of high dudgeon about the Robin Thicke/Marvin Gaye case, and today sees a fresh bout of insanity, which sees Taylor Swift crediting – of all people – Right Said Fred for part of the chorus of her latest song.
See if you can spot the chorus of I’m Too Sexy in here.
What’s that? You can’t? That’s because you have a functioning pair of ears. The passage in question is the chorus, which is a sort of chanty, more-rhythm-than-melody bit of doggerel along the lines of ‘the goose drank wine’ section of Hey Mickey.
By that, I mean it has a playground sort of feel to it: it’s the sort of thing that kids would sing while dancing around a tree. I’m not putting that down as a means of expression at all – those…
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