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

Last week's Privilege Point described the availability under Rule 502 of a clawback order allowing retrieval of protected documents regardless of the care taken by the producing party. Despite the availability of this forgiving standard, many litigants and courts continue to explicitly incorporate an "inadvertence" standard into their clawback agreements and orders.

In U.S. Home Corp. v. Settlers Crossing, LLC, Civ. A. No. DKC 08-1863, 2012 U.S. Dist. LEXIS 101778, at *7 (D. Md. July 23, 2012), the court dealt with a clawback order that allowed retrieval of "'documents the producing party deems to have been inadvertently disclosed.'" The court held that in determining whether the producing party had taken the proper "precautionary measures" and fulfilled its "post-production responsibilities" sufficient to "escape waiver," the court "will default to Rule 502(b) to fill in the gaps in controlling law." Id. at *19. The court assessed Womble Carlyle's