Under Fed. R. Evid 502(d), a federal court can assure that an inadvertent disclosure of privileged documents in the case before it will not allow litigants in subsequent cases to argue that such disclosure triggered a permanent waiver, allowing them to also access and use the documents. Some litigants and even courts try to stretch that principle beyond Rule 502(d)’s literal language.
In San Diego Coastkeeper v. United States Int’l Boundary & Water Comm’n, the court entered a typical Rule 502(d) discovery order — explaining that because of the anticipated “expedited or truncated privilege review,” any disclosure of privileged documents “will be deemed unintentional and inadvertent,” and thus will not waive the producing party’s privilege. Case No. 3:24-cv-00663-JES-VET, 2025 U.S. Dist. LEXIS 65200, at *14 (S.D. Cal. Apr. 1, 2025). But it’s clear that the producing party must retrieve such privileged documents.
With courts’ approval, some litigants seek Rule 502(d) orders taking a dramatically broader approach — allowing an adversary to retain rather than return even intentionally produced privileged documents and forbidding litigants in any other cases from claiming a waiver and seeking or using those documents themselves. Although not anchored in Rule 502(d)’s more limited language, presumably courts overseeing other cases may honor such expansive “selective waiver” court orders as a matter of judicial comity.
