Unless your agreement was incorporated into a court order before you started exchanging discovery, a court can ignore the private clawback agreement and declare a waiver has occurred by your inadvertent production. You need a court order — always!
Clawback Agreements. Federal Civ. R., Rule 26(b)(5) provides a procedure that allows the parties to agree that during discovery a producing party who has inadvertently produced attorney-client privileged communications or work product documents can notify the receiving party of the privilege claim. After notice, the receiving attorney must return, sequester or destroy the specified information, retrieve any copies shared with others, and may not use or disclose the allegedly privileged ESI until the claim of privilege is resolved. This is known as a “clawback agreement”.
The clawback procedure is useless if before exchanges of information the parties have not agreed to use the procedure.
We have the law summary, clawback agreement, consent to court order, and court order form you can use as the basis for drafting the document to be signed by counsel. Important benefit to you: Our form applies to both electronic information and to paper documents – and includes a court order.
Under Federal Rules of Evidence, Rule 502, a Federal court can enter an order approving the parties agreement, or making it’s own clawback order. A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court. If there is a court order, that order will bar any determination by another federal court or by any state court (in any proceeding) that a waiver has occurred. The states will probably adopt similar rules or come to like common law determinations when you have a clawback agreement in a state proceeding adopted by the state court’s order.
How you will you be judged if you are accused of not taking reasonable steps to prevent disclosure, or not taking reasonable steps to rectify the error of disclosure of attorney – client privileged materials or work-product materials? Why not put a procedure into place that declares a reasonable set of steps? And why not do it as a matter of standard operating procedure in all your cases? The form to do it takes little time, but gives you relief from one more worry in your litigation. Make it easier on yourself.
Our four page discussion of law and four page form non-waiver agreement PLUS court order propels you to a finished document in a few minutes.
We are selling the Clawback Agreement for only $17. Click the “Add To Cart” button to get Clawback Agreement.