In their Federal E-Discovery column, H. Christopher Boehning and Daniel J. Toal, partners at Paul, Weiss, Rifkind, Wharton & Garrison, write that, armed with a mandate to effectuate Congress' and the Advisory Committee's desire to reduce litigation costs through Rule 502, judges may now be able to order parties to enter clawback agreements, or go even further and require parties to accept documents that have not been reviewed, yet remain subject to clawback.
April 05, 2011 at 12:00 AM
1 minute read
By significantly relying on the “intent” behind Federal Rule of Evidence 502, two recent decisions hold that federal courts may enter, without party agreement, an order requiring parties to return inadvertently produced privileged documents without waiver of privilege.
The potential for federal courts to impose such “nonwaiver agreements” on non-consenting parties is now a reality.
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