Clawback agreements, pursuant to federal provisions 502 (d) -e) and equivalent state rules, are intended to avoid waiving privileges without the need for rule 502, point b). See The Fed. A. Evid. 502 (d) ( “A federal court may order that the prerogative or protection not be nullified by the disclosure of the dispute in the courts – in this case, the disclosure is also not a waiver in any other federal or state proceeding. Fed. A. Evid. 502 (e) (e) (“An agreement on the effect of disclosure in federal proceedings only engages the parties to the contract, unless it is included in a court decision.” Similarly, the Court is considering approving the parties` recovery agreement in advance. Fed.
R. Civ. P. 16 (b) (3) (iv) (“The term order may . . . All agreements entered into by the parties to assert privileges or protection rights as post-information preparation material, including arrangements made in accordance with the Federal Rule of Evidence 502). If you are not acting in a jurisdiction that corresponds to the first approach described above, you must exercise some diligence when verifying the documents to be provided and when drafting those documents. Section 2 states, in reference to FRE 502 (b), that a waiver can be avoided if “the holder of the prerogative or protection has taken appropriate steps to prevent disclosure.” If your recovery agreement sets out certain steps to prevent disclosure, your pre-production process should include all of them. If your recovery agreement does not define such measures, you must nevertheless put in place a multitude of safeguards to prevent disclosure and avoid any waiver, including the use of technology to label certain documents as potentially preferred, on the basis of custodians or keywords, by training auditors to the key personnel platform , theme and verification that is used. and verify certain documents or sets of documents at the second level.