In the end, Arconic sought judicial review of the Special Master`s decision. The Tribunal accepted some of the Special Master`s findings, but concluded that it was necessary to clarify the situation and held a new hearing (which has not yet taken place) to determine whether Rule 502(b) and not the parties` recovery agreement would apply to subsequent recovery claims. However, the court found that a lawyer`s privilege must be interpreted restrictively, as it impedes the fact-finding process. Accordingly, inside information should, as far as possible, be blacked out and not fully retained, and that the facts underlying the legal advice in the documents are not protected by solicitor-client privilege and may be used in this case. It will be interesting to see how this dispute evolves because, as the judge found, CLAWback agreements are intended to reduce time and cost by allowing parties to rely less on comprehensive privilege audits. Regardless of this, screening and preventing the unwanted production or disclosure of inside information or avocados` work products should not be a painful or painful process. One of the most important services we offer at Percipient is managed auditing and, in almost all cases, we help our clients manage privileged documents. But, according to Windstream, the parties` recovery agreement should settle the question of privileges – and the only trigger for that deal was accidental production. According to Windstream, Rule 502(s) gives these agreements a dominant effect.
Despite 502(e), the Tribunal was not convinced that the recovery agreement would have control: as in other contributions, we encourage the use of recovery agreements. They allow the parties to the lawsuit to demand the return of inside information produced during the discovery and prevent the waiver of privilege. Irth`s lawyer was not sympathetic to Windstream`s claim that the production was accidental, given the three months it took for ESI to hand over and the lack of a privilege protocol. « It`s unbelievable that a company with Baker Hostetler`s reputation makes such an unintentional mistake, » the lawyer replied — then declined to return the documents. However, this recovery provision did not offer broad protection against privileges that the parties would have wished, as windstream would later discover. However, the Tribunal also noted that the Sedona conference also « cautioned that an injunction under Rule 502(d) should not be used as a cost transfer tool allowing the producing party to produce a `data casing`s`and obliging the requesting party to identify privileged documents. FRE 502(b) simply states that disclosure is not considered a waiver of attorney`s privilege or protection of work products if the party that produced the information « immediately took appropriate steps to correct the error. » Recovery agreements may contain more accurate information, for example. B the number of days that the producing party must notify the receiving party after the discovery of the disclosure; how this notification is to be made (e.g.B.