In re '318 Patent Infringement Litig., Case No. 05-356 (D.Del. Mar. 1, 2007)
This case illustrates the importance of specifying the scope of the right to "claw back" inadverdently produced privileged information, and of timely exercise of that right. (FRCP Rule 26(b)(5)(B) addresses the claw-back issue.)
The document in question was identified at the deposition and the deponent was questioned about it. Yet, the moving party argued "that they should be excused from their untimely request for return [of the document] because the document was not really 'used.'"
The court rejected the argument, reasoning that the claw-back provision in the stipulated protective order "speaks to the 'document' being used, not the allegedly privileged portions of the document being 'used.'"
Moreover, given the remaining language of [the provision], I conclude that the purpose of the paragraph is to ensure that the producing party has been put on notice that the document has been produced and deemed relevant to the issues in the case. The use of the document at bar satisfied those purposes, despite the fact that the deponent was not familiar with the document and, therefore, was not questioned in depth about it.