'Clawback agreements' can ease e-discovery burdens.

• Date: 05 March 2007

Byline: David Ziemer

In a world where an estimated 95 percent of business documents are created electronically, and 35 percent never reach paper, how do you comply with a request for e-discovery without losing privilege in the documents that may be privileged? Federal Rule of Civil Procedure 26(b)(5)(B) provides the procedure, but it is not without its perils. Parties can enter "clawback agreements" -- that production without intent to waive privilege or protection should not be a waiver so long as the responding party identifies the documents mistakenly produced, and that the documents should be returned under those...