Gilson v. Pennsylvania State Police, No. 1:12-cv-00002, 2015 WL 403181 (W.D. Pa. Jan. 30, 2015) is an example of the time consuming and expensive process often required to claw-back inadvertently produced privileged materials in the absence of a FRE 502(d) order. In this case, the court reviewed defendants’ motion to claw-back certain documents under the multi-factor test adopted by FRE 502(b), which requires a party to demonstrate that it inadvertently produced privileged materials; that it had taken reasonable steps to prevent the production of privileged materials; and that it acted promptly upon learning of the production of the privileged materials. The court noted that a party seeking claw-back relief under FRE 502(b) bears the burden of proof for each of the three elements of the rule. Here, the parties did not dispute that the notes at issue were privileged, and defendants averred that they had taken reasonable steps to prevent disclosure and that they had acted promptly upon learning of their production. The court nonetheless found that defendants had not submitted sufficient evidence regarding either element. The court concluded defendants had not provided enough detail regarding how and whether a privilege review was done, and by whom, and the circumstances relating to the disclosures, such as whether the defendant had taken reasonable steps to sequester the documents. The court found that there were factors that both supported waiver, and that supported claw-back relief. The court permitted defendants to try again – to supplement their submission “if they can do so consistent with Fed.R.Civ.P. 11” at the time they submitted their motion for summary judgment.