eDiscovery Daily Blog

Clawback Rights Upheld and Plaintiff Sanctioned for Refusal to Comply Concerning Inadvertently Produced Privileged Documents – eDiscovery Case Law


In RIPL Corp. v. Google Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. (W.D. Wash. Dec. 17, 2013), seven discovery-related motions were heard concerning this trademark infringement action. The various motions to seal, compel, enforce, and sanction were filed after the parties had entered into a stipulated protective order. Washington District Judge Ricardo S. Martinez granted in part, denied in part, and deferred in part the various motions.

The protective order in force included a clawback provision, which required inadvertently produced attorney-client privileged documents to be returned or destroyed, with certification for the deletion or destruction of the documents, provided the party invoking the provision took the steps of “promptly notifying the recipient(s) and expressly articulating the basis for the asserted privilege or immunity.”

In the filing, the defendant stated that privileged documents had been inadvertently produced to the plaintiff on July 2, 2013. However, counsel for the defendant did not realize the documents had been disclosed until August 12, 2013, while preparing for the defendant’s deposition. The defendant conducted a search the next day for other privileged documents that may have been disclosed, and communicated via email with the plaintiff to exercise the clawback provision. The plaintiff at this point refused to return or destroy the documents at issue.

When the defendant filed a motion to enforce the protective order and clawback provision, it also requested that the plaintiff be sanctioned for filing documents under seal that quoted the privileged documents at issue, and filed a request to strike, along with other motions.

In arguing the motion to enforce, the plaintiff claimed that the defendant had waived its right to claw back the documents because “prompt” and “inadvertent” had not been defined under the protective order. The plaintiff cited the balancing test of Federal Rule of Evidence 502(b) for waiving attorney-client privilege with regards to “inadvertent” and claimed that the clawback request had not been “prompt.”

Judge Martinez rejected the arguments of the plaintiff concerning the clawback request, stating that there is “no requirement that, in order to supplant Rule 502(b), an agreement provide adequate detail regarding ‘what constitutes inadvertence, what precautionary measures are required, and what the producing party’s post production responsibilities are to escape waiver.’” Simply, it was ruled that “terms like ‘inadvertence’ and ‘prompt’ need not be defined in the protective order” under Rule 502. The plaintiff was ordered to certify the deletion or destruction of all unredacted copies of the privileged documents at issue within ten days.

The defendant’s request for sanctions were denied concerning the plaintiff’s filing documents under seal that contained quotes from attorney-client privileged documents. However, Judge Martinez ordered the plaintiff to pay the defendant’s fees and costs for bringing the motion, as a sanction for refusing to comply with the clawback provision and “hold[ing] the documents hostage for roughly two months in violation of the Protective Order.”

So, what do you think? Should a time limit be imposed as the definition of “prompt” with regard to stipulated protective orders? Should parties be permitted to submit attorney-client privileged information under seal when privileged documents are received inadvertently? Please share any comments you might have or if you’d like to know more about a particular topic.

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