"The Clawback Agreement gives you a sense of confidence when exchanging electronic data during discovery."

The rules now give you a procedure to protect you and your client from inadvertent disclosure of privileged information during discovery exchange of electronically stored information. But you have to draft the "clawback agreement" and get it signed.  Start with a form.

Federal Civ. R., Rule 26(b)(5) provides a procedure that allows the parties to agree that during discovery a producing party who has inadvertently produced privileged or work product data can notify the receiving party of the privilege claim. After notice, the receiving attorney must return, sequester or destroy the specified information, retrieve any copies shared with others, and may not use or disclose the allegedly privileged ESI until the claim of privilege is resolved. This is known as a "clawback agreement."

But the procedure is useless if the parties have not agreed to use the procedure.  If you want to protect your privilege from being inadvertently waived, we have a form clawback agreement you can use as the basis for drafting the document to be signed by counsel

A rule of procedure does not trump substantive law. Generally, federal courts are bound to follow the substantive law of the state involved.  In certain circumstances, the state substantive law of privilege may provide for waiver even though the parties involved have agreed otherwise.  The most common instance is when a third party, not a party to the non-waiver clawback agreement, has learned the contents of the inadvertantly produced document.  Furthermore this is an area where state rules and ethics opinions may differ substantially from the federal rules. In the absence of a state rule on the subject, some courts have held that the sending lawyer has a duty to safeguard the privileged materials, and the privilege is fully waived by the beach of duty by the sending lawyer.

Nevertheless, the advantages of having a clawback agreement in place are becoming so well known that clawback agreements are becoming popular.  The form sold here contains a well crafted and clear clawback agreement.

Everything's guaranteed. No questions. No red tape.  The best guarantee in the law form business. If you do not agree this is worth every penny, just ask for your money back in 60 days. You keep our product.  You get your money back!

You cannot get a better guarantee.
You have nothing to lose!

We are selling the Clawback Agreement  until midnight of  , for only $15.  . Click the "Buy Now" button to get Clawback Agreement..

Return to Electronic Evidence and E-Discovery Subsection of our Product Catalog

Return to our main Product Catalog