The USDC for the EDNY ruled that a party cannot “claw back” privileged documents, disclosed without a privilege review, because it failed to properly object when opposing counsel questioned a deponent about them. This waiver ruling came despite the party having previously secured a FRE 502(d) protective order providing that the party does not waive any privilege claim by disclosing information later identified as privileged. Certain Underwriters at Lloyd’s, London v. Nat’l R.R. Passenger Corp., 2016 WL 6875968 (E.D.N.Y. Nov. 17, 2016). You may read the decision here.
Fed. R. Evid. 502(d) permits federal courts to enter an order precluding privilege waiver “by disclosure connected with the litigation pending before the court.”