United States:
Must "Clawback" Orders Limit Retrieval To "Inadvertently" Produced Protected Documents? Part I
13 September 2012
McGuireWoods LLP
To print this article, all you need is to be registered or login on Mondaq.com.
Under Federal Rule of Evidence 502(d), a federal court "may
order that the privilege or protection is not waived by disclosure
connected with the litigation pending before the court." The
Rule's legislative history clearly indicates that such an order
may allow clawback of privileged documents "without the need
for exhaustive pre-production privilege reviews." 154 Cong.
Rec. H7817, H7819 (daily ed. Sept. 8, 2008) (Statement
of Congressional Intent Regarding Rule 502 of the Federal Rules of
Evidence). The Rule's Explanatory Note likewise explains that
such court orders may "provide for return of documents without
waiver irrespective of the care taken by the disclosing
party." Explanatory Note on Evidence Rule 502 prepared by the
Judicial Conference Advisory Comm. on Evidence Rules (Revised
11/28/07), Subdivision (d) (adopted by Congress Sept. 8, 2008, 154
Cong. Rec. H7817, H7820).
Some litigants and courts have taken advantage of this Rule 502
provision. They agree on clawback orders with language such as the
following: "'[I]n order to facilitate discovery and avoid
delays, . . . [t]he producing party is specifically
authorized to produce Protected Documents without a prior privilege
review, and the producing party shall not be deemed to have waived
any privilege or production [sic] in not undertaking such a
review.'" Adair v. EQT Prod. Co., Case Nos.
1:10CV00037 & 41, 2012 U.S. Dist. LEXIS 90250, at *3 (W.D. Va.
June 29, 2012) (internal citation omitted). Such orders allow a
producing party to retrieve protected documents regardless of the
care the producing party took in a privilege review, and even in
the absence of such a privilege review.
Rule 502(d)'s invitation provides a tempting standard when
both sides undertake large privilege review projects. Next
week's Privilege Point will address the consequences of the
parties' incorporation of an "inadvertent" standard
in a clawback order.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from United States
Defenses To Contract Damages In New York
KI Legal
Defendants who face breach of contract damages claims can assert several defenses to mitigate, or altogether eliminate, a potential award of damages against them.