The court's decision in IRTH Solutions, LLC v. Windstream Communications LLC, No. 2:16-cv-00219 (S.D. Ohio Aug. 2, 2017), arose from a discovery dispute relating to the defendant's inadvertent production of forty-three privileged documents—first in January 2017 and again in March 2017. The parties had entered into a short clawback agreement, which included a provision that "[i]nadvertent production of privileged documents does not operate as a waiver of that privilege."
As a threshold matter, the court first confirmed that the forty-three documents at issue were in fact privileged, and that their disclosure was inadvertent. The court then considered the issue of waiver, looking for guidance from other circuits because the Sixth Circuit has not yet addressed how clawback agreements intersect with Federal Rule of Evidence 502(d). After discussing three approaches for assessing the validity of a clawback agreement against Rule 502(d), the court found two standards to be applicable: (1) inadvertent production of a document does not constitute a waiver where there is a protective order with a clawback provision, unless the document production process was completely reckless; and (2) requirements of Rule 502(b) can be superseded by a clawback agreement only to the extent such an agreement provides concrete directives regarding each prong of Rule 502(b).
The court did not differentiate between the two approaches because "when taking into account [the defendant's] careless privilege review, coupled with the brief and perfunctory clawback agreement, following either approach leads to the same result: Defendant has waived the privilege." The court ultimately held that because defense counsel did not take reasonable steps to prevent disclosure, the privilege protections were waived. The court did note, however, that this was not a subject-matter waiver of privilege and that the waiver thus applied only to the forty-three documents at issue.
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