In East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., No. 12-cv-517 (D.N.H. Sept. 16, 2014), the district court held that the terms of the protective order entered by the court at the outset of the litigation governed the process for clawing back inadvertently produced privileged documents, thus obviating the need to resort to the fact intensive exercise otherwise required by FRE 502(b). At the outset of this case, the court entered an order providing: “If documents…subject to a claim of attorney-client privilege…[are] inadvertently or unintentionally produced, such production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any such privilege….” The protective order contained no language requiring a party to take reasonable steps to avoid inadvertent disclosure. Plaintiff sought to claw back a privileged document, and defendant argued that plaintiff could not prove that the disclosure had been inadvertent without first proving that plaintiff had taken reasonable steps to prevent disclosure. Noting that some courts have “borrowed” the reasonableness language of FRE 502(b) in applying a FRE 502(d) order, the court rejected that approach, explaining that such an approach would defeat the express purpose of FRE 502(d): to allow parties to limit the costs associated with screening documents produced during discovery for privilege. Finding that plaintiff’s disclosure was “unintentional,” the court held that there had been no waiver.