In Episode 157, Kelly Twigger discusses the key provisions of an FRE 502(d) order juxtaposed against recent rulings questioning the applicability of 502 and whether it applies to the intentional non-production of ESI in In re TikTok Inc. In App. Browser Privacy Litig.
Introduction
Welcome to this week week’s episode of the Case of the Week series, brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education, and the Principal at ESI Attorneys. Thanks so much for joining me.
Each week here on the Case of the Week, I choose a recent decision in ediscovery case law and talk to you about the practical implications of that decision for you and your clients. This week’s decision is an order on FRE 502(d) and privileged materials that is fantastic language for you to leverage in your matters.
Before we get started, I wanted to just take just a minute and congratulate our very good friends, Kara Peterson and Richard DiBona of descrybe.ai, and Stephanie Wilkins of Legaltech Hub, as well as all of the winners for their awards at the American Technology Awards this week. Your work is amazing and a gift to the legal tech community. Thanks so much for everything that you do, and congratulations!
All right, let’s dive into this week’s case.
This week’s case comes to us from the In re TikTok, Inc. In App Browser Privacy Litig. This is an MDL case, and this particular matter is before United States District Judge Rebecca Pallmeyer. This is a decision from September 27, 2024.
As I mentioned, this is Judge Pallmeyer entering an order that is stipulated and agreed to by the parties. It has some really great takeaways for us and things that you can leverage in your practice to be able to provide the protection of Rule 502(d). It also gives me a great opportunity to talk to you about the importance of Rule 502(d), and we can also juxtapose it to a couple of other decisions that we’ve covered here on Case of the Week.
Judge Pallmeyer has nine decisions in our eDiscovery Assistant database back to 2001, so they’re spread pretty evenly over that 24-year period. I think a lot of the decisions that she sees are generally decided down at the magistrate level in that District Court. That’s why I think we don’t see a lot of decisions from her, but this one is a good one, and her other decisions are very well articulated.
As always, we tag each of the issues in our eDiscovery Assistant database with our proprietary issue tagging structure. This week’s issues include attorney-client privilege, waiver, attorney work-product, clawback, FRE 502(b), FRE 502(d). Note that we add both of those issue tags because of the difference in the analysis by the courts on those two sections, and we’ll talk a little bit about that.
Background
The plaintiffs here alleged that TikTok illegally intercepts users’ communications and activities on third-party websites through the web browser within the TikTok app. Specifically, the plaintiffs assert that when the users access third-party websites through the in-app browser, the browser inserts JavaScript code that tracks users’ keystrokes and activities on those websites and collects all of the data that’s entered. Each of the actions here are punitive nationwide or statewide class actions, asserting claims under the Federal Wiretap Act or state anti-wiretapping statutes. The plaintiffs variously assert claims for violation of data privacy and consumer protection laws and common law claims for invasion of privacy or unjust enrichment. Those are the claims that we’re dealing with and the scope of the matter that underlies the order here.
The order that I chose for today’s discussion is a departure from our usual discussions on a “he-said, she-said” in motion practice. Instead, this is an order that was jointly stipulated to by the parties to address inadvertent production in discovery. I chose it for today because this is an order that you can leverage in your own matters, regardless of the size. Many of the decisions that I cover on the Case of the Week are in complex matters, some of them in multi-district litigation like this one. But the benefit of having them highlighted for you is that you can leverage the work that has already been done by very sophisticated counsel on these matters just by tweaking it for your specific matter. One word of caution juxtaposed with that statement, you do have to conform the order to fit the needs of your case. Please do not take these orders and just rote enter them in your own case. We’ll talk more about that.
Federal Rule of Evidence 502
All right, let’s talk a little bit about understanding Rule 502(d), and do a little background there. Since we started this webcast in 2020, I’ve been reiterating to you over and over that you should be incorporating a Rule 502(d) order into your cases in which you’re producing ESI.
If you’re not familiar with it, Federal Rule of Evidence 502 was enacted in 2008, two years after the amendments to the Federal Rules of Civil Procedure providing for the discovery of electronic information went into effect. The purpose of Rule 502 was to enable litigants to minimize the cost of civil discovery in federal proceedings without risking broad waiver of privileges in either federal or state proceedings. In effect, the rule looks at the issue of a lot of times we have a federal litigation, there are other, related matters in which the same data might be produced. We see that a lot in a lot in these complex large MDL cases. There may be an investigation internally first, there may be an investigation by a government agency, there may be a separate federal proceeding, and separate state proceedings. The idea of 502(d) is to prevent waiver of production of privileged material in both an existing litigation and also in related proceedings.
Rule 502 is titled “Attorney-Client Privilege and Work Product; Limitations on Waiver”, and its opening language states the following: “The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work product protection.”
Section (b) of Rule 502 addresses inadvertent production and lays out three steps that a party must demonstrate to preclude waiver following an inadvertent production in either a federal or a state proceeding:
- the disclosure is inadvertent;
- the holder of the privilege or protection took reasonable steps to prevent disclosure; and
- the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(b).
Section 502(d), however, takes that three-step analysis out of the mix where the parties agree to an order that is signed by the court. That section, again, Section (d), is titled “Controlling Effect Of a Court Order”. It states that:
A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.
Something to focus on there, “the litigation pending before the court”.
We covered an episode more recently on Case of the Week in which a party had inadvertently produced privileged information in an investigation that was not in the litigation pending before the Court and sought to use 502(d) to protect it once federal litigation was filed. The Court rejected that request, noting that the language of Rule 502(d) says “in the litigation pending before the Court.” So, really important that you be putting this 502(d) order in place and knowing that it doesn’t apply in investigations or outside of a federal litigation.
Many states have also enacted their own federal rule of evidence that mirrors 502(d). A lot of times it’s called 502. Look at your state equivalent, see whether you have it. You should get it entered in state proceedings as well as federal ones.
We’ve covered several cases just looking comparing the analysis under Rule 502(b) vs. Rule 502(d). Rule 502(b) requires that three-step process and you being able to show that you’ve taken reasonable steps. We’ve covered several cases here on Case of the Week in which parties have been tripped up by the reasonable efforts requirements of Rule 502(b) or its state equivalent. And, if you’ve followed or heard retired Magistrate Judge Andrew Peck speak, you’ve heard him say that not having a Rule 502(d) order is malpractice. Rule 502(d) basically takes out the analysis of Rule 502(b). If you do not have a 502(d) order in place, you will be required to meet the three steps of Rule 502(b) in arguing to try and claw back inadvertently or produced materials.
The long and short of it is this. Having a Rule 502(d) order in place is incredibly inexpensive insurance for the potential waiver of attorney-client privilege due to the inadvertent production of ESI. Even if you take every reasonable step known to man, or I should say ediscovery professional, to prevent the disclosure of privileged materials, it still happens, and it happens pretty often. The volumes and complexity of what we are dealing with in ediscovery, even in small matters, gets harder every day. We focus more on text messages. We’re now dealing with collaboration platforms and all kinds of ability to instantly communicate with the other side or with the other parties who will be custodians in the litigation. This is one small and very easy step to implement that can save your client money and problems.
Magistrate Judge Peck authored a very simple two-paragraph order several years ago that you can utilize, and it reads as follows:
- The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).
- Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.
That’s former Magistrate Judge Peck’s order. You can use just those two paragraphs of language. We’re going to see that those are incorporated into the order we’re looking at today, but today’s order goes beyond just those two paragraphs. So if you need to get a process in place, I want you to focus on the order that we’re looking at today, and that’s why I’m highlighting it for you.
In terms of implementation, a 502(d) order can be entered in multiple ways. As a standalone order, part of a protective order in your ESI protocol, and there may be other ways. The rule does not preclude anything specific about how the language has to be implemented, just that it be an order signed by the court.
The 502(d) Order in In re TikTok
With that background on Rule 502, let’s look at the order in the TikTok case here. There are several things that I love about this order that I want to focus on. It’s short, not more than a 10-minute read. The link is being provided to you in the comments, the posts, the show notes, wherever you’re viewing or listening to this particular broadcast. Take a look at the order. Every link in our eDiscovery Assistant database is a public link, which means you can view the order without a subscription.
What it Covers
First, the order starts by saying that the parties can modify the order by written agreement. We’ve discussed before on Case of the Week that having language in your ESI protocol allowing it to be modified for good cause is important and the same is true here on the 502(d) order. If this order was limited to just the two paragraphs I read to you above from Judge Peck’s proposed order, you don’t need the modifying language. But this order lays out process, and it’s more necessary here than it would be in just those first two paragraphs that I gave you earlier. Focus on whether you need it with the language and process that you’re including for your order.
The second thing I love about this order is that it specifically states that Section (b) of Rule 502 does not apply. The order actually states “For the avoidance of doubt, Federal Rule of Evidence 502(b) does not apply with respect to the privileged materials or information that are the subject of this Order.” There have been a lot of arguments about whether or not 502(b) applies. It’s different from the situation I mentioned earlier about whether or not it’s in this litigation. That particular sentence takes the guesswork out of it. 502(b) does not apply. We are applying 502(d) here. That takes any question out of it as to whether a party has to show that three-step analysis that can be challenging under Rule 502(b).
The order also defines what it applies to, including:
any privileged or otherwise protected or exempted information contained in deposition transcripts and/or videotapes, documents produced in response to requests for production of documents, answers to interrogatories, responses to requests for admissions, affidavits, declarations, and all other information or material produced, made available for inspection, or otherwise produced and/or submitted by any of the parties in this litigation pursuant to the Federal Rules of Civil Procedure, as well as testimony adduced at trial or during any hearing (collectively “Information”).
Now, that covers the gamut of possibilities, and it leaves nothing to chance. That’s a great language to include.
The Process for Recovering Produced Privileged Material
The second part of the order sets forth the process for dealing with the production of privileged materials, and the detail here is incredibly well thought out and forward thinking, which is my favorite kind. That section leverages the specific language invoking 502(d):
Pursuant to Federal Rule of Evidence 502(d), the disclosure or production of any privileged or otherwise protected or exempted information, as well as the production of information without an appropriate designation of privilege, in this case shall not be deemed a waiver or impairment of any claim of privilege or protection in this case or in any other federal or state proceeding, including, but not limited to, the attorney-client privilege, the protection afforded to work product materials, statutory privileges and protections, or the subject matter thereof, as to the produced document and any related material.
That’s more expansive than the language that Magistrate Judge Peck’s order includes, and it’s a good extension of the language. I like it. The order also notes that nothing in the order limits a party’s right to review documents for privilege before production. That’s the second paragraph of Magistrate Judge Peck’s order. Paragraphs 4-13 of the order lay out a step-by-step process with deadlines for how the parties must handle the production of privileged information, including when a document is used during a deposition, at a hearing, or in a filing.
This process requires that the producing party must submit a clawback notice to the receiving party to start the process and includes the sequestering of material until the privilege is resolved. What is not included here is any obligation by the receiving party to notify the producing party of the disclosure of potentially privileged information, and that’s likely a product of the type of matter that we’re in here, although I’m kind of surprised we don’t see something about the receiving party’s obligations. I guess we’re just going to rely on their ethical standards to be able to notify the other side.
This case here is an MDL where TikTok has the data. I’d still want that protection from the receiving party, but maybe it was a deal breaker here. We are always Tuesday morning quarterbacking on the Case of the Week, so it’s really hard to know what’s happening. However, if you’re going to utilize an order like this one in your matters, consider whether you want protections in it to require the receiving party to notify the producing party if it finds potentially privileged information. What I do love about this order is that it considers all the ways in which produced privileged data may come to light, and it identifies a process for dealing with each type of instance. These lawyers have done the work to flush that out, and you can use it.
Takeaways
All right, what are our takeaways from this order?
First, read it. Go in and look at it. Create a template for yourself to be able to leverage in your own cases and tweak it. The case law and the rules are the governing tools for lawyers. The case law in ediscovery continues to evolve at an epic pace. With more than 3,400 decisions to date in 2024, we will hit or surpass more than the 5,000 decisions in 2023. Now, the great part about that is that you can know how courts are responding to the same arguments you want to make. You can also leverage the work product of other incredibly talented and sophisticated lawyers by paying attention to what is out there, including today’s order.
With that being said — and I cannot emphasize this enough — you cannot just take an order like the one today or an ESI protocol from another matter and use it directly. It needs to conform to your case and consider all the nuances about the data sources and issues that you may have in your case. If you are concerned that you do not have the knowledge to do that, I suggest two things.
First, consider whether or not that’s really true. You’re a litigator and you know what can happen. You know all the things you’ve come up against in the past and you can plan for them. This order is your opportunity to do that. It’s your job to foresee the issues that can occur, and this is just another extension of that.
Second, if you really don’t have the confidence to be able to issue spot what can happen in your case, hire someone to help. Call me. I’ll help, or I can help you find somebody who can.
Finally, put the FRE 502(d) order on your checklist of case items. Do it early. It’s a no-harm, no-foul situation. But if you do have an issue, you cannot buy any better insurance.
Conclusion
That’s our Case of the Week for this week. Be sure to tune in next week, whether you’re watching us via our blog, YouTube, or downloading it as a podcast on your favorite podcast platform. Thanks and have a great week!
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