However, the respondent does not recognize that, despite the objective of Rule 502 to establish uniformity, the courts still dispute how to analyze involuntary revelations where there is a superficial recovery agreement and the alleged inattention has resulted in unintentional production. Indeed, the courts have developed three different approaches to the interaction between recovery agreements and Rule 502 (b), which were questioned by the Tribunal. In the world we are practicing – a technological world that in some cases requires the production of terabytes of data and millions of pages of documents – everyone should be familiar with recovery agreements. Clawback agreements are generally included in broader confidentiality agreements and/or protection orders that maintain the protection of solicitor-client privilege as well as other privileges in the event of accidental disclosure by one of the parties. In the federal system, these agreements are specifically addressed by Federal Rule of Evidence 502 (FRE 502). However, the Special Master acknowledged that Arconic`s reliance on the terms sought, not a complete review of privileges, contributed to the publication of protected information and imposed a decision burden on it on issues that could have been avoided. The Special Master also pointed out that the approval of a more liberal recovery language under the rule of evidence 502 (d) « is not intended to transfer the burden of identifying privileged documents to the adversary who verifies the documents of use in the case… It will be interesting to see how this litigation unfolds because, as the judge noted, clawback agreements are designed to reduce time and costs by allowing parties to rely less on lien checks. Regardless of this, screening and prevention of the production or disclosure of inside information or avocado products should not be a painful or painful process. One of the most important services we provide at Percipient is managed review and, in almost all cases, we help our clients manage privileged documents. Clawback agreements often include « no fault » or « regardless of care » provisions.
These clauses allow the return of privileged or protected materials without forenouncing the document and the contents of the document, regardless of the measures taken (or not) by the producing party to prevent disclosure.