*9 Second, NARP's reliance on Nilavar
and American Coal Sales
is misplaced. This Court, in American Coal Sales,
reviewed a magistrate judge's decision that pre-dated the enactment of Rule 502 and employed the five factor balancing test from Nilavar, 2004 WL 5345311, *3. American Coal Sales, 2009 WL 467576 at * 17. In American Coal Sales,
this Court upheld the magistrate judge's decision, which was guided by the test from Nilavar,
even though Rule 502 was properly found to apply. Id.
at * 17 n. 1. This Court explained that Rule 502 was consistent with the five factor test the magistrate applied, given that the Advisory Committe Note to Rule 502(b) listed the same factors found in Nilavar
as considerations bearing on the Court's determination of “reasonableness” under Rule 502. Id.
Specifically, the Advisory Committee Note states that prior to enactment of Rule 502(b), courts employed multi-factor tests, which included consideration of “the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness,” in determining whether the privilege had been waived. The Advisory Committee Note further explains that although Rule 502(b) does not explicitly codify this multi-factor test, as these factors are “really a set of non-determinative guidelines that vary from case to case,” the rule is “flexible” and can accomodate consideration of any of these listed factors when the court is assessing reasonableness. Advisory Committe Note to Fed.R.Evid. 502(b). Thus, the multi-factor test approved of as being consistent with Rule 502(b) in American Coal Sales
is not mandatory and merely serves to guide a court's analysis when appropriate under the particular circumstances of each case. Id.
Therefore, the Magistrate's decision is not clearly erroneous simply because it did not use all of the factors from Nilavar,
which were discussed in American Coal Sales,
to guide its anaylsis of Rule 502 in this case.