eDiscovery Daily Blog

• September 28, 2012

 

As discovery becomes more complex and voluminous, it seems as though we’re seeing more and more cases where inadvertent disclosures of privileged documents are becoming more common.  In just the past couple of months, we’ve discussed two cases on this blog, where the producing parties were forced to waive privilege of those documents when they failed the now popular five factor test to determine whether an inadvertent disclosure entitles the producing party to have the documents returned.  Perhaps if they had a well-defined “clawback” agreement, the results would have been different?

What is a “Clawback” Agreement?

A clawback agreement enables the parties in a case to agree – in advance – that if privileged documents are inadvertently produced during discovery, privilege on those documents won’t be waived. The inadvertently produced documents are instead returned to the producing party, or destroyed by the receiving party – either way, they are not used by the receiving party.  As part of that agreement, each party is able to identify documents that it has inadvertently produced and request that they be returned or destroyed by the opposing party.  Per the clawback agreement, the opposing party agrees to comply with that request and not make a claim of waiver.

Protection of Waiver under FRE 502

Federal Rule of Evidence 502 (FRE 502) was enacted in 2008 to provide additional reassurances for parties dealing with the problem of inadvertent waiver.  Under FRE 502, inadvertent disclosure of privileged material does not operate as a waiver if three conditions are met:

• The disclosure is inadvertent
• The holder of the privilege took reasonable steps to prevent disclosure
• The holder promptly took reasonable steps to rectify the error

What a Clawback Agrement Should Include

To promote compliance with the three conditions, the clawback agreement should address each one, clearly stating that inadvertent production of privileged material will not waive privilege, and addressing the steps that should be taken to avoid inadvertent disclosure, as well as to rectify the error, if such inadvertent disclosure occurs.  The definition of “reasonable steps” in each case is in the eye of the beholder, so it’s a good idea to establish and agree on specific steps, if possible.  The clawback agreement should also clearly define the procedure to be followed if assertion of privilege is disputed.

Because of FRE 502, if a clawback agreement is incorporated into a protective order entered by the court early in the case, it ensures court approval of the process in case there are disagreements and is binding on the parties, including third parties.  If you can’t agree on the terms of the clawback agreement with the opposing party early in the case and establishing the protection that it affords is important, you may need to file a motion with the court to get a clawback order entered.

So, what do you think?  Do your cases typically include a court-filed clawback agreement?  Have those agreements ever been used to protect inadvertently disclosed privileged information?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.