Clawback Order In Action – Rajala v. McGuire Woods, LLP

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We’ve written quite a bit about the value of clawback orders – both that they are well-established best practices in commercial litigation, and that some state rules are beginning to incorporate Federal clawback language into state rules.  In short, Federal courts may enter confidentiality orders providing that disclosure of privileged or protected material in a litigation pending before the court does not constitute waiver in other state or federal proceedings.  This kind of order is known as a clawback order- the point is to provide the parties with predictable protection from waiver when responding to a court order for production of documents pursuant to such an arrangement.  But do they work?  Look no further than last month’s opinion in Rajala v. McGuire Woods, LLP (D. Kan. Jan. 2, 2013) to see how a clawback can save privilege and let litigators sleep a little easier without nightmares of privilege waiver.

In Rajala, the plaintiff produced a variety of documents on a DVD– a production that the defendant argued was a “‘document dump’ with no pre-production review.”  The privilege waiver issue revolved around a document produced on the DVD, Exhibit 818, an undated email from a  former CFO to an attorney.  This document was indisputably “a privileged and confidential attorney-client communication[,]” but the defendant argued that its production constituted a waiver of privilege as the plaintiff failed to take reasonable steps to vet privileged information from what the defendant called a “document dump.”

Typically, this would result in a waiver of privilege and Exhibit 818 would be fair game to use.  However, there was a clawback order in place in Rajala.  Nearly a year before the alleged document dump, the Rajala court entered a clawback order, holding that

Indeed, the Court finds that this case is precisely the type of case that would benefit from a clawback provision. Such a provision will permit the parties to conduct and respond to discovery in an expeditious manner, without the need for time-consuming and costly pre-production privilege reviews, and at the same time preserve the parties’ rights to assert the attorney-client privilege or work product immunity. The Advisory Committee Note indicates that Federal Rule of Evidence 502 “responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information.” The Advisory Committee observed that “[t]his concern is especially troubling in cases involving electronic discovery.”

The Court further agrees with the Advisory Committee that “if there [is] a way to produce documents in discovery without risking subject matter waiver, the discovery process could be made much less expensive.”  The Court believes that a clawback provision is one way to make discovery less expensive and less burdensome for not just [defendant] but for both parties in this case.

In sum, the Court holds that entering an order with a clawback provision to govern the inadvertent disclosure of attorney-client privileged information and work product materials would serve the purposes behind Federal Rule of Evidence 502. It is also consistent with the Court’s duty under Federal Rule of Civil Procedure 1 to “secure the just, speedy and inexpensive determination of every action.” In addition, the court finds that such a provision would protect [defendant] from the oppression and undue burden of an exhaustive pre-production privilege review. Accordingly, the Court concludes that [defendant] has shown good cause for the entry of an order containing a clawback provision that will be governed by Federal Rule of Evidence 502(d)

Thus, earlier in the case the defendant had sought and received a clawback order- yet now, the defendant argued that the clawback order did not protect  privileged document where there was no “showing of ‘reasonable steps’ pre-production privilege review[.]”  The Rajala court rejected this argument, holding that

[Defendant's] interpretation of this Court’s opinion is misplaced. Here, the Court entered its July 22, 2010 order pursuant to Federal Rule of Evidence 502(d), which, as Plaintiff aptly noted, “is designed to allow the parties and the Court to defeat the default operation of Rule 502(b) in order to reduce costs and expedite discovery, i.e., to determine that `the privilege or protection is not waived by disclosure connected with the litigation.’ FRE 502(d) (emphasis added).

Moreover, [defendant] has presented no evidence to suggest that Plaintiff’s counsel engaged in a “document dump.” Specifically, there is no evidence that Plaintiff’s counsel, in producing the PST file containing Exhibit 818, intended to overwhelm or burden the receiving party with documents largely irrelevant to the litigation; instead, the emails contained in the PST file appear directly related to [the litigation and defendant's] discovery requests.

In sum, the Court finds that Exhibit 818 is a privileged communication . . . . The terms of the Protective Order, and not the default provisions of Federal Rule of Evidence 502, govern the handling of inadvertent productions in this case. The order is designed to reduce the time and costs attendant to document-by-document privilege review, and was entered with the express goal of eliminating disputes regarding inadvertent disclosure of privileged documents, which would disrupt the discovery process and cause the attorneys in this case to expend significant resources and time arguing about what steps were taken to prevent disclosure and to rectify the error.

This opinion is good news for those who rely on clawback orders to do what they are intended to do– allow a party to spend less time on tedious privilege review, without the fear that letting privileged documents slip will be a fatal error resulting in privilege waiver.  The lesson?  Get a clawback in place, and sleep a little sounder after producing a PST (a Personal Storage Table file, containing emails)!

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