Parties frequently agree upon, and courts normally endorse, “claw-back orders” allowing the producing party to retrieve accidentally produced protected documents. Most of these parties use the term “inadvertent” in such orders, which they assume will allow them to retrieve any protected document that slips through their privilege review process.
Unfortunately, several years ago the District of Massachusetts refused to order the return of accidentally-produced protected documents, despite the entry of such a protective order – finding that the production was not “inadvertent,” but rather was caused by “grossly negligent” methodology. VLT Corp. v. Unitrode Corp., 194 F.R.D. 8, 12 (D. Mass. 2000). In Amorin Holding v. Financeira S.G.P.S., S.A. v. C.P. Baker & Co., Ltd., Civ. A. No. 09-10641-DPW, 2011 U.S. Dist. LEXIS 134877 (D. Mass. Nov. 22, 2011), the court reached the same conclusion about the same language in a protective order. The court explained that “the parties chose not to specify the kinds of conduct covered by the confidentiality order” and therefore found “that the documents are only protected insofar as their production was not the result of gross negligence.” Id. at *12. The court remanded for a determination of how the accidental production occurred.
Although this interpretation has not taken root outside Massachusetts, corporations and their lawyers might consider using the word “unintentional” or some other more forgiving standard than “inadvertent” in claw-back agreements or orders.