Privilege Clawback Agreements: Will They Protect in the Face of Reckless Review and Production?
The attorney-client privilege is one of the bedrock principles of the American legal system. The privilege facilitates candid communication between client and attorney and is nearly absolute – especially in civil litigation matters.
Absolute, that is, until one of the following situations occurs:
- A client knowingly and intentionally waives the privilege.
- A client or their attorney act with such negligence or recklessness that the privilege is deemed to be waived.
Such was the case in Irth Sols. LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219 (S.D. Ohio Aug. 2, 2017). In Irth, the parties entered into a short privilege clawback agreement (not confirmed by court order) that provided “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege.” Id. at 2.
Unfortunately, the defendant’s production of privileged documents was anything but inadvertent. The Court cited a number of facts supporting its holding that the production was instead “completely reckless.” Those facts include the number of privileged documents produced; the fact that the very same documents were produced not once but twice; the time that elapsed before initial production; and the fact that the production “was not the result of a technical error or mistake born from hours and hours of review.” Id. at 24-28. As such, the Court denied defendant’s request for sanctions and the return of the privileged documents. The Court’s order is currently stayed pending defendant’s motion for reconsideration.
However, it should be noted that perfection is not the standard.
“Make no mistake, the Court is sympathetic that in this day and age privileged documents will inevitably fall through the cracks and be produced inadvertently. . . . Yet, as the ‘guardian’ of the attorney-client privilege, it is a lawyer’s responsibility to minimize the cracks through which privileged material might slip.” Id. at 27.
At Level 2 Legal, our clients count on us to conduct privilege review every single day. With millions of pages of potentially privileged documents under our belt, our first pass and quality assurance processes and controls can be adjusted to accommodate a client’s needs and the documents presented for review. Our project managers and team coordinators carefully note steps taken and decisions made throughout the privilege review process. Should the need arise, we are prepared to clearly and precisely assist with any declarations required to prove up the propriety of the process and resulting productions.
Click below to learn more about how Level 2 Legal is protecting the privilege of our clients every single day as we review our clients most sensitive documents.