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Commercial Litigation Law
502(d) Orders are not a novel concept. Case law research reveals that 502(d) Orders have been employed across the county, particularly in United States District Courts in New York, West Virginia, Florida, and South Carolina since as early as 2012. In fact, the Advisory Committee Notes for Rule 502(d) state: “The rule provides a party with a predictable protection from a court order – predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.” The authors’ experience with the District Court in South Carolina confirms that courts generally react favorably to such an approach.
There are a few practices that will increase the likelihood of a court entering a 502(d) Order. First, it is recommended that the parties confer and submit a proposed 502(d) Order jointly or by consent. It is usually an easy sell to opposing counsel because the protections from the 502(d) Order are advantageous to all parties who produce documents in the litigation. Second, it is recommended that the 502(d) Order be submitted as a separate and freestanding document from the consent protective order. While there is nothing to prevent the inclusion of Rule 502(d) protections within a protective order, utilizing a separate order helps to identify and highlight the preemptory effect of the order. Finally, while there is no “magic language” required in a 502(d) Order, it is recommended that counsel include sufficient details to address handling of a claw-back dispute and to ensure efficient dispute resolution under the order. As such, businesses and individuals involved in document-intensive litigation should consult with their attorneys toward the beginning of litigation to ensure that an effective and robust 502(d) Order is drafted and submitted to the Court for approval.
The ability to use a 502(d) Order to preempt a prolonged fight over an inadvertent disclosure and the factors listed under 502(b) is an invaluable resource to lawyers, their clients, and the judicial system. The practice increases judicial efficiency and provides an added layer of protection that is becoming ever more important with the evolution of ESI. In light of the complexities of modern discovery and ESI management, innovative litigators across all jurisdictions should employ 502(d) Orders to protect themselves and their clients from the ill-effects of protracted claw-back proceedings. Don’t let complacency or prior good fortune distract you; get on board with 502(d) Orders before you inadvertently disclose a privileged document and it is too late.
Robert E. Sumner, IV is an FDCC Defense Counsel member and a Partner with Butler Snow in Charleston, SC.
Contact him at: Robert.Sumner@butlersnow.com. Joel Anderson Berly, IV is an attorney also in the firm’s Carleston, SC office.
Contact him at: Jay.Berly@butlersnow.com.
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FDCC ANNUAL FIVES 2023