E-Discovery and Litigation Data
Production
A clawback agreement establishes a procedure for recalling privileged material produced by mistake. It typically requires prompt notice, return or destruction by the receiving party, and sequestration pending resolution of any dispute over the claim.
Its protective force is substantially greater when entered as a court order under Federal Rule of Evidence 502(d), which makes the non-waiver binding in other federal and state proceedings.
Alternative Names:
Clawback Provision, Non-Waiver Agreement
Why it Matters?
In large productions, some privileged material will slip through regardless of review quality. A 502(d) order converts that near-certainty from a waiver crisis into a procedural step, and it permits less exhaustive and less expensive privilege review. It is among the cheapest and most valuable protections available, and it is still frequently overlooked.
Frequently Confused with
Related terms
Frequently asked questions
Why is a Rule 502(d) order better than a private agreement?
Does a clawback agreement excuse privilege review?
