The troubling ambition of Federal Rule of Evidence 502(d).

• Author: Correll, Michael
• Position: P. 1031-1057

ABSTRACT

Federal Rule of Evidence 502 promised to change American litigation for the better. It was heralded as a solution to the gross inequity and spiraling litigation costs associated with the painstaking, cumbersome, and largely wasteful document reviews necessary to protect the attorney-client privilege. And in some measure, it succeeded. It has brought uniformity, predictability, and equity to issues of inadvertent disclosure and subject matter waiver. But a largely overlooked provision of the rule promises even bigger, and more troubling changes. Federal Rule of Evidence 502(d) authorizes district courts to enter discovery orders protecting parties from the waiver consequences normally attached to sharing privileged materials. This new power, however, was not meaningfully circumscribed by Congress. Instead, Rule 502(d)'s plain language appears to authorize everything from court-sanctioned "clawback" and "quickpeek" agreements to wholesale voluntary disclosures. What is more, once a district court authorizes a disclosure, subsequent parties and even state courts are bound by the district court's decision. This Article examines the development and early application of Rule 502(d) as well as its underlying rationale in an effort to address some of the potential benefits and consequences attendant to such a far-reaching--even paradigm changing--evidentiary rule. It finds that, while the new rule could promote more efficient litigation, Rule 502(d) orders may ultimately bring about little in the way of cost savings, erode the attorney-client privilege, and further complicate modern discovery practice.

1. INTRODUCTION

   An end to spiraling discovery costs. (1) No more inadvertent waiver. (2) The final days of the much-dreaded subject matter waiver. (3) Federal Rule of Evidence 502 has been heralded as the legislative innovation that could bring an end to all of these common and costly afflictions plaguing American litigation. After two decades of largely unsuccessful tinkering with the Federal Rules of Civil Procedure, (4) Congress believed that it had struck upon a novel and effective solution--shift the focus from how information is shared in discovery to how it is actually used as evidence in litigation. (5) But what if this shift portends even more significant structural changes to the fundamental operation of federal trial courts? The plain language of Rule 502(d) appears to authorize courts to protect even voluntary disclosures of attorney-client privileged information where such an authorization best serves the immediate needs of a pending matter. (6) Are the possible consequences of this new judicial authority--affecting everything from the types of information shared in discovery to the forms of evidence that can be admitted at trial to the troubling consequences of shielding trial proceedings from public view--worth the purported cost-savings that brought about this shift in the first place?

   These claims may, at first blush, seem alarmist. After all, Rule 502(d) a very brief, forty-six-word "enabling" provision (7)--sits at the end of a fairly narrow rule clearly targeted at issues regarding inadvertent disclosures and productions in government investigations. (8) Further, Rule 502(d) limits itself to the attorney-client privilege and work product protection. (9) But in the short time since Rule 502 went into effect, it has already overleaped these limitations. Federal courts around the country immediately embraced the new rule with open arms in the two years following its effective date, and many of these courts have already begun casting a hopeful eye toward expanding the rule's reach to resolve a host of common problems with both large- and small-scale litigation. (10) In the most striking examples, courts have used Rule 502(d) to justify compelled disclosures of privileged documents (11) and even to authorize purely voluntary disclosures between adverse parties. (12) These early cases mark a truly radical shift away from more than a century of privilege jurisprudence. If left unchecked, this shift will carry a wide array of collateral consequences. And while these consequences could be both beneficial and detrimental, one thing is clear: they were largely overlooked throughout the rule-making process.

   This Article explores the potential applications and extensions of Rule 502(d) already starting to emerge in the case law. Part II examines the aspects of the attorney-client privilege that created the problems Rule 502 was intended to resolve. Specifically, it addresses the relatively brief history of the requirement that a party forever preserve the confidentiality of privileged communications to avoid a waiver. Part III takes a detailed look at the rulemaking process that resulted in the promulgation of Rule 502 to determine what potential issues were considered by Congress and identify some of the unexpected issues that have arisen in the early application of the rule. Part IV evaluates the early applications of Rule 502(d) since its inception, as well as some of the early noteworthy developments related to other parts of the rule. This analysis focuses on the various judicial innovations and expansions that have already pushed this fledgling judicial power in bold new directions. Part V assesses a number of consequences of adopting a broad view of Rule 502(d), ranging from the potential due process implications of binding absent parties with a federal court order to the potential discovery cost reductions to the ever-increasing assault on the sanctity of the attorney-client privilege.

2. THE PERSISTENT PROBLEM OF CONFIDENTIALITY

   The attorney-client privilege is an extraordinary device. In an effort to promote candor and the better pursuit of truth through the adversarial process, it excludes and suppresses relevant, factual information. (13) Though not impenetrable, it represents a sturdy and reliable shield against prying eyes such that clients in the American judicial system feel comfortable sharing information with their counsel. And the requirements to invoke this invaluable protection are fairly straightforward: the attorney-client privilege protects (1) communications between a client and her attorney (2) made in the pursuit of legal advice or assistance (3) that are intended to be confidential (4) so long as that confidentiality is preserved. (14) It is this last aspect of the privilege the requirement that confidentiality be preserved--that bears most of the blame for the laborious and expensive process of privilege review that, as discussed infra in Part III, motivated Congress to reform the law of attorney-client privilege. (15) Though held sacred today by most courts, this requirement that privileged information remain confidential against all outsiders is a fairly modern invention (16) that, in many respects, has caused far more harm than good during its relatively brief existence.

   This Part considers the history, the current condition, and the merits of this key element of privilege analysis. First, it examines the twentieth-century origins of this addition to the much older elements of the attorney-client privilege along with the surrounding circumstances that purportedly motivated its development. Second, it explores the current state of the confidentiality requirement while addressing the growing chorus of scholarly, judicial, and practical voices calling for an end to the perpetual preservation requirement.

   1. The Origins of the Not-So-Old Confidentiality Requirement

      Like so many common law doctrines, the attorney-client privilege bears the ratification of age. Thus, the more than 400 year history of the privilege often entices the unwary into simply assuming that every aspect of the privilege has enjoyed the full vetting of centuries of common law tradition. But, in reality, the privilege also shares another feature of a great many common law doctrines: what it is today is not what it always was.17 Specifically, the preservation of confidentiality was not a requirement of the early common law privilege. (18) In fact, the requirement of initial confidentiality is only a relatively modern innovation. (19) A careful review of the history of the preservation requirement reveals it to be the product of little more than the scholarly success of John Wigmore and the prevailing jurisprudential notions of the early twentieth century. (20)

      The modern confidentiality requirement of initial confidentiality and the attendant mandate that confidentiality be preserved traces its roots directly to the ascendance of Wigmore as the leading evidence scholar of the early twentieth century. (21) As David Drysdale notes in his extensive and detailed history of this topic, the imperative application of the confidentiality requirement first came into vogue with Wigmore's 1899 revision of Professor Simon Greenleaf's earlier seminal treatise "A Treatise on the Law of Evidence." (22) In that edition, Wigmore introduced the forerunner of what would later become the modern per se "disclosure rule" (23) when he added an illustration asserting that "[t]he presence of a third person will usually be treated as indicating that the communication was not confidential; moreover, a third person who overhears the communication is not within the confidence and may disclose what he hears." (24) In the years that followed, Wigmore made the confidentiality requirement explicit--adding that "communications must originate in a confidence that they will not be disclosed" as a prerequisite to claiming the privilege. (25) In short, as Paul Rice has put it, "[t]he concept of confidentiality and secrecy was literally made up by Wigmore in the first edition of his treatise." (26)

      Importantly, this approach to the privilege was not universally accepted or left unchallenged even in Wigmore's day. (27) In fact, as late as the 1950s, it remained unsettled whether the privilege could arise in the first place if a...