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Rule 502 is a powerful but underutilized cost-cutting tool

The rule holds that inadvertent disclosure of privileged material doesn't constitute a waiver of privilege

Read InsideCounsel's May feature about the current e-discovery landscape.

Why do litigants continue to underuse a powerful tool that could cut the often-considerable costs of privilege review? Under Federal Rule of Evidence 502, a court can order (or parties can agree) that inadvertent disclosure of privileged material doesn’t constitute a waiver of privilege. Under such a Rule 502 clawback order, parties are allowed to exchange information without conducting an exhaustive (and expensive) privilege review or logging every privileged document and withholding it. The order allows accidents to happen—and they do, constantly, says Ken Withers, director of judicial education for the Sedona Conference—without being deemed a waiver.

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Melissa Maleske

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