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ARTICLE · 13 SEPTEMBER 2012

Must "Clawback" Orders Limit Retrieval To "Inadvertently" Produced Protected Documents? Part I

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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."

United StatesLitigation, Mediation & Arbitration
Thomas Spahn
Thomas Spahn

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).

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