Are clawback agreements and orders dangerous? Or are they a haven of safety? Should they be embraced as the sweet candy of privilege protection, or feared as opening a new bag of tricks?
Some love the claw. They try to get an agreement and order whenever they are in federal court and have large e-discovery productions. They have studied the new rules and are confident that clawbacks give added protection to privileged documents. It is relatively simple and inexpensive.
Other lawyers are still deeply suspicious of clawbacks. They fear them, mainly because they do not understand them. They are new, unknown, and strange. There is little case-law on what they mean and how they should be used.
A few others fear the claw, not out of ignorance, but out of of close familiarity and concern about what the claw might become. They fear that a clawback order could force them into the dreaded quick-peek, force them to produce without adequate review. They fear the claw could lead to a Dementor’s kiss, an embrace where secrets are drained from the corporate soul.
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Source: e-discoveryteam.com
By: Ralph Losey
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