Addressing the Shifting Landscape for Rule 502(d) Non-Waiver Orders
Editor’s Note: Federal Rule of Evidence 502(d) was intended to give litigants a simple, reliable way to protect privilege without the cost and uncertainty of inadvertence litigation. That promise, however, is increasingly under strain, as evident in Phil Favro’s examination of a trend in which some courts have begun requiring party stipulation before entering a 502(d) non-waiver order, despite no such requirement appearing anywhere in the Rule’s text. The recent In re Class Action Settlement Administration Litigation decision serves as the centerpiece example, showing how a court’s insistence on consent pushed litigants back toward the more burdensome Rule 502(b) inadvertence standard that 502(d) was designed to avoid. The article also addresses the related issue of “belated clawbacks,” where producing parties try to retrieve privileged materials long after opposing parties have relied on them. Drawing on guidance from The Sedona Conference, Favro offers practical suggestions for drafting more resilient 502(d) orders that anticipate these disputes rather than leaving them to ad hoc resolution.
Addressing the Shifting Landscape for Rule 502(d) Non-Waiver Orders
By Phil Favro, Contributing Author for HaystackID
Federal Rule of Evidence 502 is nearly 20 years old. Passed by Congress and enacted effective September 19, 2008, Rule 502 was hailed as a step forward in efficient litigation practices.
Under its express wording, Rule 502 eliminated the varying and inconsistent common law standards for evaluating whether parties had inadvertently waived the attorney-client privilege or work product protection over documents they mistakenly produced in litigation. That provision—memorialized in Rule 502(b)—was useful in and of itself, creating a uniform standard for determining waiver through inadvertent disclosure.
But subdivision (b) was never the endgame of Rule 502.
Rule 502(d): Procedure, Impact, and Benefits
The most important aspect of the Rule was the provision enabling courts to issue non-waiver orders under Rule 502(d).
Rule 502(d) non-waiver orders allow parties to establish a simple procedure for retrieving documents produced in litigation claimed as attorney-client privileged or work product. Under a basic Rule 502(d) order, all that producing parties must do to obtain those documents is contact litigation adversaries and demand their return.
This is a key feature of Rule 502(d) orders. But if document retrieval were all that mattered and if parties could always reach agreement on the procedure for retrieving (or “clawing back”) a privileged document, then Rule 502(d) would not really matter. After all, Rule 502(e) makes clear that courts should honor “clawback” agreements to ensure no waiver transpires in the instant litigation between the parties.[1]
But what about other lawsuits? Would a party’s disclosure of privileged information be a waiver in subsequent or other proceedings? And what if litigation adversaries did not stipulate to a clawback agreement? Would the party claiming privilege have no recourse?
These issues spotlight why Rule 502(d) does matter. First, it allows parties to obtain non-waiver orders without a stipulation or agreement between the parties. Even where one party objects to entry of a Rule 502(d) order, the court may enter that order over the non-consenting party’s objection. Second, Rule 502(d) ensures that waiver does not transpire in other federal or state lawsuits despite a party’s disclosure of privileged information.
Rule 502(d) thus accomplishes several objectives. It eliminates the complexities of establishing inadvertence as a matter of law under Rule 502(b), along with the delays, costs, and varying degrees of interpretation (e.g., what are “reasonable steps” either “to prevent disclosure” or “to rectify the error?”) and the inherent uncertainty with that procedure. In addition, it safeguards a party from waiver, both in the instant litigation and other lawsuits. Congress implemented Rule 502—and specifically Rule 502(d)—to address these very issues.
Rule 502: Mixed Results
After 18 years of litigation experience and court decisions, Rule 502 has in many instances lived up to its billing. This is apparent from the many federal district courts around the country that have local rules and standing orders providing for implementation of Rule 502(d) non-waiver orders. In addition, courts have issued Rule 502(d) orders in countless instances and subsequently upheld their provisions when challenged in motion practice.
And yet, the experience with Rule 502(d) has been far from perfect. To be certain, parties have abused the non-waiver order process by retrieving, in certain instances (apparently for litigation advantage), non-privileged materials or privileged information that was produced months or even years previously.
Extra-Judicial Requirements for Rule 502(d) Orders
While these practices are problematic for the integrity of the discovery process and litigation, they are not the only challenges or most pressing issues facing Rule 502(d). Equally troublesome are the extra-judicial requirements that courts have sometimes engrafted on non-waiver orders, thereby making their provisions more challenging to invoke for parties claiming privilege or work product.
One such example is a requirement that a Rule 502(d) non-waiver order specifically “supplant” the default process implemented by Rule 502(b). If the 502(d) order does not reflect precise enabling language about supplanting the Rule 502(b) analysis, some courts have construed those orders to be Rule 502(b) orders and directed the party claiming privilege to establish inadvertence as a matter of law.[2]
Another, more recent requirement that courts have begun imposing is a mandate that parties stipulate to Rule 502(d)’s safeguards. A cooperative agreement between parties on the issuance of a Rule 502(d) order is undoubtedly the preferred solution for both litigants and courts. However, like the Rule 502(b) “supplant” proviso, neither the Rule nor its explanatory note require a stipulation:
A court may enter a Rule 502(d) order sua sponte or on motion by a party supported by good cause. Consent of an adversary is not required . . . The Explanatory Note also points out that the parties’ mutual assent is not required for an order to issue.[3]
And yet, in multiple instances in 2026, courts have rejected requests for entry of Rule 502(d) orders absent a stipulation between the parties. The most prominent of these cases is In re Class Action Settlement Administration Litigation. In that case, the court denied a request that a Rule 502(d) non-waiver provision be included in a protective order given the objection of non-consenting parties.
Parties seeking Rule 502(d) orders should be aware of Class Action Settlement and similar decisions. Nevertheless, the case does offer guidance on how parties may consider obtaining entry of non-waiver orders even where adversaries may not agree to their implementation.
The Class Action Settlement Case
The Class Action Settlement multidistrict litigation (MDL) involves claims alleging “class action settlement administrators conspired with banks or fintech companies in kickback schemes that artificially depressed the payouts received by class members.”[4] To help structure the process of discovery in this MDL, the parties negotiated procedures for a protective order and an ESI protocol. While reaching agreement on various provisions in those proposed orders, the parties disagreed on certain terms that ultimately required judicial resolution.[5] One disputed term in the protective order focused on Rule 502.
In their proposed version of the protective order, the plaintiffs requested that the court use Rule 502(b) to evaluate inadvertent productions of attorney-client privileged or work product information. In contrast, the defendants argued for entry of their proposed protective order, which included a Rule 502(d) non-waiver provision. Under the defendants’ proposed Rule 502(d) order, producing parties apparently would not waive privilege or work product for documents produced in the litigation “regardless of inadvertence or care.”
The court sided with the plaintiffs and agreed to use Rule 502(b) to evaluate inadvertent productions of privileged or work product information. In so doing, the court recognized the prevalence of Rule 502(d) orders implemented in different cases in that same district court. In addition, the court acknowledged that other federal judicial districts, along with The Sedona Conference, had implemented model Rule 502(d) orders and those orders rejected the application of Rule 502(b).
Nevertheless, the court felt Rule 502(b) was the better approach in this case given the plaintiffs’ objections to the Rule 502(d) procedure. Indeed, the court’s determination appeared to turn on the plaintiffs’ lack of consent and distinguished the instant situation from other cases in the same district where the parties apparently stipulated to Rule 502(d) relief.
Moreover, the court expressed concern that producing parties might abuse the Rule 502(d) procedure to lodge “belated clawbacks.” The court specifically mentioned the possibility of producing parties retrieving information that other parties “relied on . . . for example, to support a motion or as a deposition exhibit [and] that has long been disclosed.”
The court closed its order on this issue by suggesting that it would allow producing parties to liberally invoke Rule 502(b) to retrieve mistakenly produced privileged or work product documents. The exceptions to the court’s apparent permissiveness would be instances where receiving parties relied on the produced information “in earlier filings or depositions” or the producing parties’ disclosure was “careless or intentional.”
Takeaways
Class Action Settlement represents a modest trend in which courts have presumed that a Rule 502(d) order must require a stipulation between the parties. Even though such a ruling represents, at best, a minority position, it is still troubling. It reads into non-waiver order practice a requirement that appears to contravene congressional intent. Moreover, it engrafts on Rule 502(d) procedure an unnecessary frill that may complicate a producing party’s ability to retrieve privileged or work product materials.
Another problem with Class Action Settlement is its suggestion that it would allow producing parties to liberally retrieve mistakenly produced information with exceptions that are seemingly clear and indisputable. It is folly to suggest the issue of legal inadvertence could be easily addressed. Questions surrounding the reasonableness of a producing party’s review efforts are invariably hotly disputed. Resulting motion practice can be lengthy and expensive, with producing parties resorting to the writ process to obtain relief from production orders. One of the key aspects of Rule 502(d) is to reduce that possibility, which Class Action Settlement may very well engender by virtue of the Rule 502(b) procedure.
To be sure, the court’s concern—and that of the plaintiffs—with belated clawback requests is real. Producing parties should be sensitive to this issue when negotiating stipulated Rule 502(d) orders. And yet, concerns over belated retrieval requests need not preclude entry of a Rule 502(d) order. Parties and courts should be able to address requesting party concerns about this issue with appropriate provisions in a Rule 502(d) order.
The Sedona Conference anticipated this very issue in its Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders when it observed that parties may consider additional provisions [for Rule 502(d) orders as] . . . more specificity may protect against the risk of nonenforcement by the court.”[6] One such provision could include a specific deadline indicating when producing parties must notify requesting parties that they intend to retrieve privileged or work product information. Another provision could include specific details distinguishing between the disclosure of privileged documents vis-à-vis the use of or reliance on those materials. As the Commentary suggests, making such a distinction could aid the parties in their negotiations over disputes, along with the court in its determination of any disagreements regarding retrieval requests. That guidance stands in sharp contrast to Class Action Settlement, where no procedure presently exists for handling these disputes.
Like many aspects of discovery, Rule 502(d) procedure is not a one-size-fits-all approach. Simple Rule 502(d) orders may be workable in many lawsuits. However, they may not work in every instance, and they may not always be the best approach, particularly in high stakes cases such as MDLs or class actions. Parties may wish to approach Rule 502(d) orders as the “art of the possible” and be amenable to provisions that ameliorate reasonable adversary concerns. If one side is not reasonable, a court should consider entry of a Rule 502(d) order—over the objection of non-consenting parties—that best addresses the needs of the parties in that particular litigation. This is what the framers of Rule 502 envisioned when they drafted and enacted its provisions. Parties and courts should act consistent with that intent in establishing a procedure for the retrieval of privileged or work product documents.
[1] Fed. R. Evid. 502(e), 2008 Explanatory Note. [2] See, e.g., United States v. United Health Grp., Inc., No. CV 16-8697 FMO (SSX), 2020 WL 10731257 (C.D. Cal. Nov. 9, 2020). [3] The Sedona Conference, Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders, 23 Sedona Conf. J. 1, 24-25 (2022) (emphasis added). The author served as an editor-in-chief for the Commentary, along with the Honorable Andrew Peck (ret.). [4] In re Class Action Settlement Admin. Litig., No. MC 25-179 (JDB), 2026 WL 2042289 (D.D.C. July 10, 2026). [5] In its order, the court also addressed several issues with the proposed ESI protocol such as the production of text messages, document family productions, and ESI search validation procedures. [6] Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders, 23 Sedona Conf. J. at 47, n.116.
About Phil Favro
Phil Favro is the founder of Favro Law PLLC, where he counsels clients on ESI, AI, and discovery issues and serves as a special master, mediator, and expert witness. Phil is nationally recognized for his expertise on ESI, discovery, and information governance, with courts acknowledging his credentials. See, e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2025 WL 2061665 (S.D.N.Y. July 23, 2025). This background makes Phil particularly well-suited to counsel clients and advise courts on information-related issues. As a special master, Phil is acclaimed for his collaborative approach, working with parties to find stipulated solutions to complex issues. For disputes that require adjudication, he is renowned for the clarity and vigor of his written dispositions, which are available on legal search engines.
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