In BNP Paribas Mortgage Corp. v. Bank of America, N.A., Nos. 09-9783, 09-9784 (S.D.N.Y. May 21, 2013), the Southern District of New York addressed two issues relating to inadvertent production of privileged documents that frequently arise in federal court: (1) Where the court has entered a protective order pursuant to Federal Rule of Evidence (“FRE”) 502(d) allowing the claw back of inadvertently produced documents without waiver, does the producing party need to comply with the elements of FRE 502(b)? Answer: No. (2) If the protective order says that a party must return or destroy inadvertently produced documents at the request of the producing party, may the receiving party keep the document long enough to seek the court’s review of whether the document is actually privileged. Answer: No. Here, the court entered a FRE 502(d) order that provided a particular procedure if a privileged document was produced inadvertently, and the court held that the protective order meant what it said: the receiving party had to delete the document and, if it wanted to challenge the assertion of privilege, it could move to compel production of the document and ask the court to review the document in camera. As to whether FRE 502(d) trumps FRE 502(b), the court concluded that FRE 502(d) means what it says: if the court orders that a party can claw back an inadvertently produced document without waiver, the court need not consider the elements provided in FRE 502(b)..