“Promptness” of a Clawback Request for Inadvertent Disclosure Must Be Reasonable (Washington)

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RIPL Corp. v. Google Inc., 2013 WL 6632040 (W.D. Wash. Dec. 17, 2013).

In this trademark infringement case, the defendant and plaintiff entered into a stipulated protective order which included a clawback provision designed to take effect when a party “promptly notif[ies]” the opposing party of an inadvertent disclosure. The defendant contended that the production of the privileged documents was inadvertent in July, 2013, but its counsel did not recognize the inadvertent disclosure until a month later. The defendant then conducted a search for other privileged documents, and notified the plaintiff, exercising its right to “clawback” the documents one day after learning about the disclosure. The plaintiff refused to destroy or return the documents, claiming the defendant had waived its right to the attorney-client privilege because it had not made a “prompt” clawback request within the terms of the order. The court disagreed, and held that although the order could have better defined the term “prompt,” the defendant’s ability to notify the plaintiff within one day after learning of the disclosure was nonetheless sufficient. The court ordered the documents be returned or destroyed.

 

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