In Cormack v. United States, 117 Fed. Cl. 392 (2014) (Fed. Cl. No. 13-232C), the court applied the fact-based analysis required by Federal Rule of Evidence 502(b) to determine whether an inadvertently produced document resulted in waiver or if it could be clawed back. In this patent infringement case, plaintiff filed a brief that attached an email produced by defendant-intervenor Northrop Grumman Systems Corporation (“Systems”). Realizing that the email was privileged, counsel for Systems contacted plaintiff’s counsel the morning after receiving the filing and asked that the document be returned or destroyed. Plaintiff destroyed all but one copy, which plaintiff sequestered. Four days later, Systems filed a motion to strike the response by plaintiff that included the email as an exhibit. The court found that the email was protected work product and that plaintiff had not made a showing of substantial need for the document. In the absence of a FRE 502(d) order that would have governed the issue of claw backs, however, the court applied the fact-intensive analysis set forth in FRE 502(b) to determine whether Systems had waived the work product protection. The court stated that whether the production was “inadvertent” was tied to the question of whether the steps taken by Systems to prevent production had been “reasonable.” Systems submitted a detailed declaration describing the process by which documents were screened for privilege, and how the document nevertheless was produced among the more than one million pages of responsive material. The court noted that it is not sufficient for a party merely to “design” a reasonable procedure, it also had to “implement” that procedure. Here, the court found that “a reasonable plan of review was inadequately implemented.” The court found, however, that Systems promptly took reasonable steps to rectify the error. Thus, there was no waiver. Note: where the court enters a FRE 502(d) order at the outset of a matter that governs claw backs, the onerous evidentiary analysis conducted by the court in this case could have been obviated.