When is a Clawback Request “Prompt” After Inadvertent Discovery Disclosure?
As electronic discovery is now a major component of most civil litigation, clawback provisions are becoming more common place in ESI protocols. Most model ESI protocol orders call for clawback requests to be made “promptly” to avoid a waiver of privilege. But what constitutes “prompt” notice if a time frame is not specifically defined?
In the case RIPL Corp. v. Google, no. 2:12-cv-02050-RSM (W.D. Wash. December 17, 2013), the defense production was tendered in response to plaintiff discovery requests on July 2, 2013. On August 12, 2013 (five weeks later) counsel for Google discovered that some privileged documents were inadvertently produced, and on August 13, 2013 sent a notice to Plaintiff for the return of the documents. Plaintiff trial attorneys objected, claiming the notice was not “prompt” in accordance with the Stipulated Protective Order in the case.
The court cited prior case law that held giving notice within a few days of discovering the inadvertent disclosure fits within the definition of “prompt.” Citing Board of Trustees, Sheet Metal Workers Nat. Pension Fund v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845, 851, the court offered the Palladium case as an example of prompt notice. The production was tendered and a few weeks later, the inadvertent disclosure was discovered on a Friday, and the clawback request was made on the following Monday. The Palladium court held that such notice was prompt and therefore, privilege was not waived.
Interestingly, the court does not bring up the fact that the defense production that contained the inadvertent disclosures was actually made on July 2, not August 12. Google’s counsel only recognized the oversight five weeks later. However, the Palladuim court noted that the Explanatory Opinion to Rule 502 explains that parties need not do a post-production additional review for privilege.
While no such offering of pre-production diligence was discussed in the RIPL case, the court held that Google’s counsel’s discovery of the inadvertent disclosure on August 12 and notification to plaintiff’s counsel on August 13 was, in fact, “prompt.”