Despite Clawback, Defendant’s Reckless Abandon of Rule 502 Bites Back

by Zapproved LLC

Irth Sols., LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017).

The court denied the defendant’s request to return privileged documents that it claimed it had mistakenly produced on two separate occasions. Although the parties had a clawback agreement, the court found that the defendant’s reckless and perfunctory behavior waived the privilege.

This case originated when the plaintiff Irth Solutions (“Irth) alleged breach of contract, fraud and other claims against Windstream Communications (Windstream). The parties assented to a clawback agreement requiring that inadvertent production of privileged documents would not waive the asserted privilege.

Windstream produced the first batch of documents late, including 2,200 pages, only 1,400 of which were readable, and no privilege log. Twelve days later, after Irth had “thoroughly reviewed” the documents, Windstream requested a clawback of 43 privileged documents totaling 146 pages that it claimed were provided by mistake. Windstream told the court that its counsel conducted “two levels of review” for privilege before sending the documents to Irth. However, somehow 14 of the 43 privileged documents included the word “legal.” Several more referred to Windstream’s counsel by name and title.

While the parties were disputing this first inadvertent production, Windstream again produced the same 2,200 pages, “this time all readable.” That production again included the 43 privileged documents. Windstream’s counsel explained to the court that she believed she sent a redacted copy and “did a spot check” to confirm that redaction before personally sending the documents to Irth. As a preliminary matter, the court found the documents privileged.

The court then considered whether the defendant had waived the privilege and what role Federal Rule of Evidence 502 played in that determination. Under Rule 502(b), an inadvertent disclosure of privileged documents does not waive the privilege if the provider took “reasonable steps” to prevent the disclosure and also “promptly took reasonable steps to rectify the error.” The court noted that, “if drafted thoughtfully and then followed, clawback agreements effectuate the dual purposes of Rule 502,” providing predictable standards and controlling costs. However, “for clawback agreements to serve these purposes, lawyers must draft them with care.”

Here, the court assumed, for the sake of argument, that the productions were indeed inadvertent (albeit negligent) rather than intentional. The court then considered three different approaches to reconciling Rule 502 and conflicting clawback agreements.

In the first approach, any clawback arrangement, “no matter how cursory,” would protect inadvertently produced documents, “regardless of the care taken” in their disclosure. The court rejected this approach, finding it “inconsistent with the underpinnings of Rule 502.”

Under the second framework, only a “completely reckless” document production process — showing “no regard for preserving [] confidentiality” — would override a clawback. The third approach would allow Rule 502(b) to be superseded by a clawback provision only if the agreement specifically provided “concrete directives regarding each prong” of the rule.

Under all of these approaches, the court found that Windstream’s counsel had waived the privilege. The 43 privileged documents that were produced “contain[ed] obviously privileged material on their face.” More than 10% of the initial production was privileged. The court was therefore “unconvinced that any meaningful review of the documents occurred.” Nor was the court impressed by counsel’s “spot check” of the second production, which did not include a single redaction. Both productions were therefore reckless, overriding the clawback provision and waiving the privilege.

In the third approach, the court found that the parties’ clawback agreement was “so perfunctory that its intentions are not clear.” Therefore, to be in compliance with Rule 502, Windstream should have taken “reasonable steps to prevent disclosure” to maintain the privilege, but it did not.

The court denied Windstream’s motion for return of the documents. Considering the “careless privilege review, coupled with the brief and perfunctory clawback agreement … [Windstream] has waived the privilege.”

Takeaways on following Rule 502(b)

Any clawback agreement you write should specifically address all three prongs of Rule 502(b). It should provide “concrete directives” for what constitutes inadvertent disclosure. Specifically, it should address what reasonable steps the parties will take to prevent such disclosure. In addition, it should outline how quickly an unintentional disclosure will be rectified.

[View source.]

Written by:

Zapproved LLC

Zapproved LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.