The first thing you should analyze prior to drafting your clawback agreement is the jurisdiction in which your case is pending to determine which approach has been adopted within that jurisdiction. The governing view will likely have an impact on the level of detail required to be included within your specific agreement. Some details might include defining what would constitute inadvertence or listing the types of precautionary measures that should be taken by the parties to prevent disclosure. Once you have made that determination, crafted your clawback agreement accordingly, and the agreement has been executed by the parties, you can move to review and production of documents in your case.
Unless you are operating in a jurisdiction that adheres to the first approach described above, you will need to exercise some diligence in conducting your review of the documents to be produced and in making the production of those documents. Referring back to FRE 502(b), subsection (2) states that waiver can be avoided if “the holder of the privilege or protection took reasonable steps to prevent disclosure.” Obviously, if your clawback agreement specifies certain actions that should be taken to prevent disclosure, your pre-production process should include all of those. If your clawback agreement does not specify any such steps, you should still institute a variety of protective measures in an effort to prevent disclosure and avoid waiver, including but not limited to the use of technology to flag certain documents as potentially privileged based on custodians or key words, having reviewers trained on the key personnel, issues, and review platform being employed, and conducting second-level quality control review of certain documents or sets of documents. Most importantly, you should make a record of all steps of the review and production process utilized to support the fact that an inadvertent production was truly inadvertent and that reasonable steps were taken to try to prevent the production of privileged material.
Finally, if a situation arises in which privileged material is produced, you should act swiftly and diligently to notify opposing counsel and work to rectify the error.
Bottom line—be diligent in your crafting of clawback agreements in your cases, ensure that they are executed by all parties, and take reasonable steps to avoid production of privileged material.
For recent decisions in a case addressing these issues of clawback agreements and waivers, see Irth Sols., LLC v. Windstream Communs., LLC, Case No. 2:16-cv-00219, 2017 WL 3276021 (N.D. Ohio Aug. 2, 2017), reconsideration den., 2018 WL 575911 (N.D. Ohio Jan. 26, 2018).