New Rules Make "Clawback" Agreements the Norm
The pending amendments to the Federal Rules of Civil Procedure that go into effect on December 1, 2006 include a number of changes directed at electronic discovery. New Rule 26(b)(5)(B) basically instills a "clawback" agreement as the default for civil litigation. Under the Rule, if a party realizes that it has inadvertently produced documents that are privileged or work product, the party may put all others on notice and retroactively enforce the protections on the document. Take a look:
(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.