As shown below, any federal court has the absolute statutory authority, which it should exercise immediately upon the filing of any action, to unilaterally enter an order that provides as follows (an “EDiscovery Privilege Order”):
1) No communications between any of parties hereto concerning ediscovery in this action shall waive the attorney-client privilege or work-product protection in this action or in any other federal or state proceeding, including but not limited to any federal court-annexed or federal court-mandated arbitration proceedings.
Cooperation between the parties is imperative in ediscovery, to prevent massive waste of resources by the parties and the courts and to prevent the cost of ediscovery from dwarfing what is at stake in the litigation. See, e.g., The Sedona Conference Cooperation Proclamation, updated May 2014, available at https://thesedonaconference.org/publication/The%20Sedona%20Conference%C2%AE%20Cooperation%20Proclamation (“Proclamation”). The Proclamation has been widely endorsed by federal and state judges across the country and cited in many published decisions. See partial list of endorsements at Proclamation at pp. 6-12 and partial list of citing cases at https://thesedonaconference.org/cooperation-proclamation.
One of the principal impediments to cooperation between counsel, particularly in connection with ediscovery, is the fear of prejudicing a client’s position by waiving the attorney-client privilege or work-product protection. See, e.g., Committee Notes for Federal Rule of Evidence 502, particularly Subdivision (d). Therefore, preventing such waivers will allow more open communication and, consequently, cooperation.
Federal Rule of Evidence 502 allows a federal court to protect the parties from waiving attorney-client and work-product protections. Subsection (d) provides:
(d) Controlling Effect of a Court Order. 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.
Federal Rule of Evidence 502(f) provides:
(f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.
Subsection (d) allows a federal court to enter such an order with or without agreement by any parties. Committee Notes for Subdivision (d) of Federal Rule of Evidence 502. Therefore, there is no reason that a court could not enter such an order immediately after an action is filed.
Although that Rule has been employed in the context of protecting information produced in discovery, its express language speaks to the broader area of “disclosure.” Therefore, the principle of FRE 502(d) extends to all of the initial “disclosures” required under F.R.C.P. 16(c)(2), 26(a)(1)(A)(ii) and 26(f).
The earlier such an order is entered, the greater the benefit to all. Federal Rules of Civil Procedure 16(c) and 26(f) jointly establish a rigorous timeline, under which counsel must hit the ground running, conferring immediately and in earnest about ediscovery and other matters. Immediate entry of an EDiscovery Privilege Order would greatly facilitate immediate and open communications between counsel on time-critical issues.