Litigants Risk Waiver In Drafting Claw-Back Agreement Provisions

Under Federal Rule of Evidence 502, litigants can agree on a claw-back order that allows retrieval of protected documents even if the producing litigant does a sloppy job of privilege review – or conducts no privilege review at all. However, many litigants continue to draft claw-back orders that allow such retrieval only if the producing party "inadvertently" produced the protected documents, and "promptly" seeks their return. These provisions needlessly risk waiver, if the producing party falls short on one or both of these standards.

In RIPL Corp. v. Google Inc., No. 2:12-cv-02050-RSM, 2013 U.S. Dist. LEXIS 179193, at *10 (W.D. Wash. Dec. 17, 2013), the court dealt with such a claw-back order – ultimately concluding that the producing party's notice of an inadvertent production one day after discovering the mistake met the "promptly" standard. Four days earlier, a Delaware state court also dealt with a claw-back order that included both the "inadvertently" and