One of the most well-established principles of our judicial system is attorney-client privilege. Attorney-client privilege is designed to promote full disclosure between attorneys and clients and to encourage individuals to seek attorneys’ services to help them understand and follow the law. The protection of this privilege is among the most important services that an attorney can provide for his client, particularly in the course of discovery.
With the advent of electronic discovery and the massive increase in the volume of material that is collected, reviewed and produced in litigation, it has become increasingly difficult to protect against the inadvertent disclosure of privileged material. Revealing the content of privileged material can be damaging to a client’s litigation position and, in some cases, his business.
It is clear that with the adoption of FRE 502 and Federal Rule of Civil Procedure 26(b)(5)(B), which requires a party to “promptly return, sequester or destroy” and not use material that is identified as having been inadvertently produced until the claim is resolved, that the federal courts have taken significant steps to validate the utility and enforceability of clawback agreements. Moreover, there is no legitimate benefit to opting not to enter into a clawback agreement. Thus, every lawyer should seriously consider entering into a clawback agreement in litigation.
Provided below are a few simple guidelines to maximize the protections that can be created by entering into an appropriate clawback agreement: