Nonwaiver Agreements After Federal Rule of Evidence 502: A Glance at Quick-Peek and Clawback Agreements


After decades of struggle with paper discovery rules in an age of electronic discovery, President George W. Bush signed Federal Rule of Evidence 502 into law on September 19, 2008. Rule 502 is aimed at reducing the costs associated with privilege review. More specifically, Rule 502 gives more judicial support for nonwaiver agreements, which are agreements between adversarial parties that preserve privilege when one party inadvertently discloses a privileged document to the other party in discovery. Rule 502 requires courts to uphold these agreements between parties who enter into them and to enforce them, even against third parties, if the agreement is incorporated into a court order. However, Rule 502 may be far too expansive, especially when its comments suggest that courts may support these agreements irrespective of the level of care taken in privilege review. This Comment urges courts to limit such agreements and justifies this conclusion through two central arguments and a suggested remedy. First, I explain why these agreements contravene public policy, particularly focusing on the ways in which a lack of privilege review may hurt clients. Courts therefore should have the power to render them unenforceable. Second, I argue that courts in particular are the best enforcement mechanism. As institutional controls, they have many more advantages over other forms of control; moreover, courts have refused to enforce nonwaiver agreements in the past. Finally, I set forth a potential guide that courts facing this question could follow. Rule 502 takes a step in the right direction in reducing the burdens of privilege review, but courts must take care to interpret the rule in a way that allows it to function as a strong tool for attorneys yet at the same time limit it so that it does not result in harm to clients.

About the Author

J.D. candidate, UCLA School of Law, 2010; B.A., UC Berkeley, 2005

By uclalaw