Privileges, Clawbacks, and Inadvertent Disclosures

Many thought that courts' approval of lenient inadvertent disclosure rules and nonwaiver, or clawback, agreements would solve this double-edged problem. But neither avenue proved acceptable in practice. Some courts still found privilege waiver when documents were mistakenly disclosed without acceptable safeguards; and other courts ruled that clawback agreements did not obviate a pre-production privilege review and were not enforceable against third parties in subsequent litigation. And in these situations, parties were neither saving production-associated costs nor protecting their privileged information from discovery.

A byproduct of technology-assisted review (TAR) software may provide the cost-savings and privilege protections that have eluded corporate counsel during the e-discovery age. This software, designed to identify relevant discovery documents without extensive attorney review, will more readily identify privileged documents and narrow the universe of relevant documents, thereby reducing costs associated with attorneys' privilege review in a way that inadvertent disclosure rules or clawback agreements never could.