March 30, 2018 Top Story

Retract Your Claws! Privilege Waived Despite Clawback Agreement

Clawback agreement will not prevent waiver of privilege from careless document production

By Candice A. Garcia-Rodrigo

A general clawback agreement does not necessarily prevent waiver of the attorney-client privilege, according to the United States District Court for the Southern District of Ohio.

The court held that a non-specific agreement did not protect a careless document production from waiver. ABA Section of Litigation leaders urge litigators to craft meticulous clawback agreements and develop documented review procedures to avoid privilege waivers.

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