If I could give litigators one piece of advice on e-discovery, it would be this: if you intend to produce more than a handful of documents, do your best to get a clawback agreement and have it entered as an order by the court.
This advice isn’t novel and shouldn’t come as a surprise. After all, the reasons for seeking a clawback agreement seem pretty obvious. The producing party can reduce—or eliminate—the risk of waiving privilege based on the mere production of the document. And without that risk looming, you can scale back your pre-production search for privileged documents and, as a result, substantially reduce litigation costs.
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