Sample Clawback Agreement

The federal courts, which have analyzed the issue of accidental production waiver under FRE 502 and the existence of a recovery agreement, have developed three different approaches: ultimately – be careful in establishing recovery agreements in your cases, ensure that they are executed by all parties, and take appropriate measures to avoid the production of preferred materials. Unless you are in a jurisdiction that follows the first approach described above, you should exercise some caution in verifying the documents to be produced and in producing those documents. Referring to FRE 502(b), subsection (2) states that the waiver may be avoided if “the holder of the privilege or protection has taken appropriate measures to prevent disclosure”. If your recovery agreement sets out certain measures that should be taken to prevent disclosure, your pre-production process should of course encompass all of these measures. If your recovery agreement does not provide for such measures, you should nevertheless take a large number of safeguards to prevent disclosure and avoid any waiver, including, but not limited to, the use of technology to qualify certain documents as potentially privileged due to custodian banks or keywords, by training experts to key personnel. Problems and verification platform used and implementation of quality control at the second level of certain documents or sets of documents. The most important thing is to record all the steps of the verification and production process that were used to support the fact that accidental production was really accidental and that appropriate measures were taken to prevent the production of preferred materials. In the world we currently practice – a technological world that, in some cases, requires the production of terabytes of data and millions of documents – everyone should be familiar with recovery agreements. Recovery agreements are typically included in broader confidentiality agreements and/or protection orders that maintain protection of attorney-client privilege as well as other privileges in the event of accidental disclosure by either party. . .

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