FRE 502 (b) simply notes that disclosure does not constitute a waiver of solicitor-client privilege or protection of work equipment when the party who produced the information “immediately took appropriate steps to remedy the error.” Clawback agreements can provide more accurate information, for example. B on the number of days that the producing party must notify the receiving party after the disclosure is discovered; how this communication should be made (for example. B by letter or email); The length of time the receiving party must react or protest against the assertion of privileges; and what the receiving party should do with the documents in the meantime. This is a concern of a recovery agreement – in the event of a dispute between the parties, a court, depending on the circuit or the state, may not be prepared to enforce a generally declared agreement, unless it expresses itself explicitly with respect to standard Rule 502 (b). Thus, the district court of irth Solutions, LLC v. Windstream Communications, LLC, 2018 WL 575911 (S.Ohio Jan. January 26, 2018) up the judge`s decision that, under the Federal Rule of Evidence 502 (b), the defendant waived his solicitor-client privilege by twice manufacturing 43 privileged documents to the applicant`s counsel, despite the agreement that the parties had a salvage agreement. Although counsel for the defendant did not dispute that the presentation of the 43 documents was “reckless”, counsel for the defendant argued that the recovery agreement should exceed the requirements of 502 (b), which would avoid giving up only in the event of “involuntary” disclosure. On the other hand, the regional court objected and focused on whether the parties` agreement was about waiving the Federal Rule of Evidence 502 (b) (b) request to “take appropriate measures to prevent disclosure.” The Tribunal found that “the recovery agreement contained no language to support the conclusion that the parties entered into an agreement, that there would be no verification prior to production [and] the e-mail in memory of the parties` recovery agreement also contained a provision requiring the parties to submit minutes of privileges.” [recalling the Court] that the parties did consider meaningfully re-examining pre-production privileges. As a result, the Court found that the defence had waived the prerogative in developing the documents and that the recovery agreement had not respected the prerogative. In the second context, protection orders with clawback provisions protect against waiver, unless the manufacturing process itself has been “totally unwise.” The Second Circuit courts “have largely followed this approach,” the court found, referring to case law in both the Eastern District and Southern New York. This approach, Jolson J.

says, is intended to recognize the value of recovery agreements without allowing them to “protect some of the consequences of reckless behaviour.” Under the Federal Rule of Evidence 502 (b) privileged documents that were created during discovery can survive production without renouncing privilege, but only if production is involuntary.