by Mary Mack, ZyLAB
Yes, in the last few weeks, two judges, Judge Waxse and Judge Maas, both enforced FRE 502(d) clawbacks, although Judge Maas titled his a Rule 502(d) Stipulation Order. Most practitioners have started using FRE 502(b) clawbacks, which requires showing a standard of care in handling privileged information for a disclosure to be deemed an inadvertent waiver. With properly drafted 502 (d) clawbacks, if it is privileged and produced, it can be returned. While these cases needed court involvement to be enforced, as time goes on, I believe there will be much less cost and drama in getting privileged documents back.
Of course, the bell does not unring. The level of diligence should not be relaxed entirely. Judge Waxse’s case is Rajala v. McGuire Woods, LLP, Civil Action No. 08-2638-CM-DJW, USDC, Kansas, Jan. 3, 2013. The model order reads in part: “The inadvertent disclosure or production of any information or document that is subject to an objection on the basis of attorney-client privilege or work-product protection, including but not limited to information or documents that may be considered Confidential Information under the Protective Order (doc. 40) entered in this case on January 4, 2010, will not be deemed to waive a party’s claim to its privileged or protected nature or estop that party or the privilege holder from designating the information or document as attorney-client privileged or subject to the work product doctrine at a later date. Any party receiving any such information or document shall return it upon request from the producing party.”