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What to Do After an Inadvertent Production: Clawback Requirements of Federal Rule of Evidence 502

by Joshua Gilliland

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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?

Everlaw’s new production modification tools can update a production to claw back privileged records.  Records that were produced can be replaced with placeholders with privilege designations for any clawed-back data. These new features can help attorneys comply with the clawback requirements in Federal Rule of Evidence 502.

Exploration of Federal Rule of Evidence 502

Federal Rule of Evidence 502(d) and (e) exist because a party could inadvertently produce privileged and/or non-responsive documents and then wish to “claw” them back. Subsection (d) states that a court can order that a privilege is not waived by a disclosure, while subsection (e) provides that a “clawback” agreement between parties is only binding to the parties to the agreement (USCS Fed Rules Evid R 502). 

The case Leibovic v. United Shore Financial Services, LLC, provides a good example of 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, No. 15-12639, 2017 U.S. Dist. LEXIS 137643, at *3-4, E.D. Mich. Aug. 28, 2017). 

Work-Product Doctrine

The resolution of this case turned on whether a document was responsive or relevant and whether that information was protected by the “work-product doctrine.”

Documents prepared in “anticipation by or for” an attorney are protected by the work-product doctrine (Leibovic, at *5, citing In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 304, 6th Cir. 2002). The work-product doctrine covers data assembled within a database for attorneys (Leibovic, at *6, citing Cason-Merenda v. VHS of Michigan, Inc., 118 F. Supp. 3d 965, 969, E.D. Mich. 2015). Documents that are responsive and non-privileged must be produced, even if within an attorney’s database.

In this case, the inadvertently-produced documents had been gathered at the direction of counsel in the anticipation of litigation. As such, they were protected by the work-product doctrine, a privilege not waived by their inadvertent production. Moreover, the documents were not responsive to the Plaintiff’s discovery requests, and thus would not have been produced regardless of their privilege status. The Court therefore ruled that the documents were properly clawed back pursuant to the Discovery Plan.

Production Modifications After a Clawback

In the above case, 400 records out of 1,150 were inadvertently produced. The requesting party had to return the production. If a producing party were in a similar situation, they could modify their production directly within the Everlaw platform.

The new “Modify Production” option allows users to produce or claw back documents based on updates to the documents’ privileged status. Though users are able to replace documents in productions with placeholders, a user still cannot add or remove documents that were originally produced. A production can also be re-run in Everlaw after changing a production configuration.

In that scenario, one option is for all of the records protected by the work-product doctrine to be replaced with placeholders branded “Work-Product Doctrine” as the basis for the documents being withheld. This is not the best plan considering the factual situation, as the withheld records were non-responsive and did not need to be produced in the first place. Moreover, the requesting parties had to return the original production, thus there would be no issue of commingled responsive and privileged documents within the requesting party’s database.

The better plan is to re-run the production after making changes to the production configuration. The documents that are protected by the work-product doctrine can be coded as privileged and thus excluded from the production.

The new production can be re-run, producing only the responsive documents with new Bates numbers. New download links can then be shared with the requesting party, so they can download the production for their review.

Empower Attorneys with Efficient Clawbacks

Inadvertent productions are often the subject of complex analysis as to whether privileges have been waived, if clawback agreements apply, and what to do after documents have been clawed back. Everlaw’s production modification tools empower attorneys to efficiently claw back privileged records and update the production with placeholders designating the privileged discovery, making it easy to comply with both Rule 502 and any Discovery Plan governing your case.