Litigants increasingly arrange for court orders allowing post-production privilege or work product claims, and permitting the producing party to “claw back” any inadvertently produced protected documents.
In Beyond Systems, Inc. v. Kraft Foods, Inc., Civ. A. No. PJM-08-409, 2010 U.S. Dist. LEXIS 39497 (D. Md. Apr. 19, 2010), one of the defendants realized during the deposition of its testifying expert that it had inadvertently produced a privileged document to the testifying expert. The defendant pointed to the agreed-upon claw-back order in seeking the document’s return. Although many courts would have immediately denied that effort (if the testifying expert had reviewed the privileged document), the court in Beyond Systems analyzed the claw-back order’s applicability. The order required the producing party to seek the return of any inadvertently produced document within twenty-one days of discovering the mistake. The court noted that the defendant had missed the deadline by ten days – and rejected defendant’s argument that although seeing the document at the deposition, it “did not recognize or understand the full privilege nature of the [document] until it was allowed to conduct a more fulsome investigation.” Id. at *5. The court therefore found a waiver.
Lawyers should remember that arranging for a claw-back order is only the first step in preventing a waiver triggered by an inadvertent disclosure during a document production – they must also follow the order’s provisions.