The Judges and Magistrates of U.S. District Court for the District of Kansas have recently begun instructing lawyers appearing before them in Rule 26(f) conferences that they consider it malpractice for parties not to have a clawback provision included in the submitted draft Scheduling Order. A clawback provision, as expressly permitted by Rule 502(d) of the Federal Rules of Evidence, allows parties to recover inadvertently disclosed privileged information, without being held to have waived attorney-client privilege or work product protection.

Some background: not too many years ago, if a party inadvertently turned over an attorney-client privileged or work product document in discovery, there was a significant likelihood that the party would be held to have waived its claim privilege, by the act of turning over the document. In today’s world, most documents are electronically stored, and depending on the type of case before a court, discovery can require the disclosure of thousands, or tens of thousands, or even millions of pages of documents to an adverse party. In 2008, in recognition of the problems associated with possible inadvertent disclosure, especially where the case involves large amounts of potentially relevant ESI, Rule 502 of the Federal Rules of Evidence was enacted, providing a framework for avoiding waiver, where privileged documents have inadvertently been produced.

Rule 502 takes a two-tiered approach. First, as a general rule, subject matter waiver will be limited to instances of either intentional disclosure (502(a)), or an inadvertent disclosure that the holder of the privilege did not take reasonable steps to prevent (502(b)). Thus, if the parties to a lawsuit have reached no agreement, and the Scheduling Order says nothing about the re-capture of inadvertently disclosed privileged documents, the parties might themselves in a legal donnybrook, if a disclosing party claims to have accidentally turned over privileged material, and the receiving party disputes whether “reasonable steps” were in fact taken to prevent inadvertent disclosure.

The second tier of Rule 502 – subsections (d) and (e) - allows for broader protection against waiver, and it is these provisions to which Judge Waxse referred in his comment about potential “malpractice”. Rule 502(d) permits “a federal court [to] order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other federal or state proceeding.” There are two important aspects to Rule 502(d): it can eliminate any potential dispute over whether “reasonable steps” were taken to prevent inadvertent disclosure; and it is available only if incorporated in a court order (commonly, the Scheduling Order, but also quite possibly in a court-approved confidentiality agreement between the parties). Rule 502(e) states that an agreement between the parties not incorporated in a court order “will be binding only on the parties to the agreement” and will have no effect in a subsequent court action or on nonparties. So, it is clearly in the best interest of a party seeking a clawback agreement to have it adopted by the court, in an order, to ensure the protections of Rule 502(d).

A recent example of the significance of Rule 502(d) appeared in the case of Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285-PGG-FM, 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013), where privileged information had been redacted from the face of a document, but could be viewed in the metadata, resulting in its inadvertent disclosure. “Dueling letters” ensued between counsel as to whether privilege had been waived. The court reminded the parties, however, that while this event underscored “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors”, privilege was not waived because a Rule 502(d) order had been entered in the case. The court pointed to the language of the order that “Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege…”, and concluded that Defendant had “the right to claw back the minutes, no matter what the circumstances giving rise to their production were.” (Emphasis added.)

The lesson here is clear: any party to a lawsuit – and especially a corporate defendant who may be called upon to disclose large amounts of electronic data in discovery – is well-advised to seek a clawback agreement, preferably adopting a “no fault” standard that takes avoids any possible debate over whether “reasonable steps” were taken - and have it approved and entered into an order of the court.