The inadvertent production of privileged discovery can be a significant challenge both legally and technically. Was the privilege waived with the inadvertent production? How can the production be technically clawed back? The answers to these questions and best practices are explained in my new guest post What to Do After an Inadvertent Production: Clawback Requirements of Federal Rule of Evidence 502 on the Everlaw Blog.
The case Leibovic v. United Shore Financial Services, LLC, provides a good example of claw backs and Federal Rule of Evidence Rule 502 in action. In Leibovic, the producing party realized within 48 hours of a production that they had mistakenly produced 400 non-responsive records as part of a 1150-record production.
The case’s Discovery Plan, an agreement between the parties on how discovery will be conducted, stated that a party could claw back an inadvertent production without prejudice for privileged documents if notice was given to the requesting party within 15 days.
Judge Victoria Roberts, of the U.S. District Court for the Eastern District of Michigan, ruled on whether the inadvertently-produced records were protected by the work-product doctrine and whether they could be clawed back per the Discovery Plan. Leibovic v. United Shore Fin. Servs., LLC, 2017 U.S. Dist. LEXIS 137643 (E.D. Mich. Aug. 28, 2017).
For how the Court ruled and best practices for modifying productions after clawing back an inadvertent production, please see the Everlaw Blog.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.