LCJ Defends FRE 502(d) waiver protection in new amicus brief

LCJ urges the 9th Circuit Court of Appeals to uphold the plain text of Federal Rule of Evidence 502(d), which protects parties from waiver of privilege, in a new LCJ amicus brief. The brief supports a petition for writ of mandamus filed by Amazon.com in De Coster v. Amazon.com, seeking reversal of the district court’s determination that Rule 502(d)’s protections against privilege waiver do not apply unless the parties’ protective order contains “concrete directives” disavowing Rule 502(b)’s standards.

LCJ’s amicus brief, prepared by Todd Presnell, Adam Williams, Zachary June, and Casey Miller, all with Bradley Arant Boult Cummings LLP, argues that that “despite 502(d)’s plain text,” the district court incorrectly conditioned the application of 502(d) on the disavowal of Rule 502(b) standards.

LCJ developed expertise on Rule 502 during the rulemaking process that culminated in its adoption in 2007. LCJ originally urged adoption of the rule in a Comment to the Advisory Committee on Evidence Rules which focused on controlling the rising litigation costs associated with electronically stored information (ESI), and argued for the inclusion of Rule 502(d) language providing predictability on privilege waiver related to disclosure of protected information during ESI productions.