LCJ Amicus Brief on FRE 502(d) Waiver Orders

Federal Rule of Evidence 502(d) permits a federal court to enter an order that “the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” The rule is unconditional on its face. It contains no inadvertence requirement, no cross-reference to Rule 502(b), and no textual limit on the orders it authorizes. The Advisory Committee on Evidence Rules was more explicit: a Rule 502(d) order may provide for return of privileged documents “irrespective of the care taken by the disclosing party.”

The U.S. District Court for the Northern District of California entered a textbook Rule 502(d) order but then declined to apply it. Uber Technologies produced 1.7 million documents in reliance on the court’s order, stating in the cover letter accompanying each production that the production was “not intended to, and [did] not, waive any applicable privilege.” The court nevertheless ruled that Uber had waived privilege over documents produced following a court-ordered re-review, and it did so sua sponte, at a status conference, with no briefing.

LCJ’s amicus brief, written by Todd Presnell (Bradley Arant Boult Cummings LLP) and filed with the U.S. Court of Appeals for the 9th Circuit on April 21, 2026, supports the mandamus petition filed in Uber Technologies, Inc., Rasier-CA, LLC v. U.S. Dist. Ct. for the N.D. of CA. The brief urges the court to hold that Rule 502(d) orders must be enforced according to their plain terms, that district courts may not impose extra-textual limits of any kind—whether drafting preconditions, implied prerequisites, or case-management overrides—and that case-management concerns supply no exception to the protection Congress enacted.

Todd Presnell is the lead author of “Privileges and Protections: Tennessee and Sixth Circuit Law” and authors the popular blog Presnell on Privileges. LCJ’s amicus brief is available here.