Clawback Under Rule 26(b)(5)(B)

A privileged document that slips into a production can be read, summarized, and built into strategy within days, and each use is harder to undo than the last. Federal Rule of Civil Procedure 26(b)(5)(B) answers that risk with a three-step clawback procedure. The producing party gives notice of its claim; the recipient returns, sequesters, or destroys the information and stops using it; and the claim is resolved by agreement or by the court. The December 2006 amendment to Rule 26(b)(5) supplied this uniform procedure for claims that privileged or work-product material was disclosed inadvertently.¹ The subsections below take the three steps in order.

The rule is a procedure, and that fixes its place beside Rule 502(b). Rule 26(b)(5)(B) supplies the machinery for pulling the material back and freezing everyone’s use of it while the dispute is pending; it does not decide whether the privilege survived the mistake. That question belongs to Rule 502(b) and its three conditions. The two provisions meet at one point: Rule 502(b)(3) counts following Rule 26(b)(5)(B), where it applies, among the reasonable steps a holder takes to rectify an error.² A producer that sends a proper notice promptly therefore does two things at once. It binds the recipient to the rule’s duties, and it builds the record for the third condition. A producer that skips the procedure must still satisfy Rule 502(b), but it gives up the step the rule names, and the recipient’s duties never begin, because they attach only after notice.

Notice by the Producing Party

The clawback opens with a permission. When information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim “may notify” any party that received the information of the claim and the basis for it.³ The notice is the producing party’s step alone, and every duty the rule places on the recipient follows it: those duties begin only after the recipient is notified.⁴

The rule keys the recipient’s duties to notice because a recipient cannot safely infer a mistake for itself. A lawyer working through thousands of pages cannot tell an accidental disclosure from a deliberate one, since a producing party sometimes hands over privileged material on purpose. Only the producer knows which it was. Notice from that party ends the uncertainty and fixes the moment from which the recipient’s conduct is judged.

Because the rule says “may,” a producer that stays silent breaks no duty under Rule 26 itself; the price of silence comes through Rule 502(b). That rule asks whether the holder promptly took reasonable steps to rectify the error, “including (if applicable) following” Rule 26(b)(5)(B).⁵ A prompt notice is a direct way to meet that condition, because it binds the recipient to the rule’s duties and gives the producer a dated record of when it acted. A late notice does the opposite: the gap between discovery and notice is the evidence a court uses to judge promptness.

The rule describes the notice’s contents in two phrases. The producing party notifies of “the claim and the basis for it,” and the recipient’s duties attach to “the specified information and any copies it has.”⁶ Each phrase does its own work. Specifying the information tells the recipient what to pull from a production that may run to hundreds of thousands of pages; without that identification, a recipient cannot sequester anything with confidence. Stating the basis, meaning which privilege or protection is claimed and why the document qualifies, lets the recipient and then the court evaluate the claim instead of taking it on faith. A basis that calls the document a confidential email from the company’s general counsel giving legal advice about a supply contract gives the recipient enough to assess the claim without revealing the advice itself. The rule’s text prescribes neither a form nor a deadline for the notice, but a written notice that identifies each document makes the best record of what was claimed and when.

The rule closes with a duty on the producing party, which “must preserve the information until the claim is resolved.”⁷ The notice takes the document out of the recipient’s hands, but a contested claim goes to a court that may need to read the document itself, either because the recipient presents it under seal or because the claim is rejected. Preservation keeps that document available, so the ruling rests on the real text and not on anyone’s description or memory. It also stops a claimant from improving its position by quietly deleting its own copy once the dispute begins.

Rule 26(b)(5)(A) imposes a related obligation of its own. A party that withholds information on a claim of privilege must make the claim expressly and describe what it withholds in a way that lets the other parties assess the claim without learning the protected content.⁸ That obligation governs material kept out of a production; the clawback notice governs material that went out by mistake. Both ask the claimant to identify the document and the ground for protection while keeping the protected content secret.

Protective orders and stipulations often add mechanics the rule leaves open, and a producer must follow whichever apply. The order quoted in Oddo v. Arcoaire Air Conditioning & Heating allows a party to assert attorney-client privilege or work-product protection over disclosed protected information in writing, and it starts the recipient’s five-business-day clock on receipt of that writing.⁹ A governing order of this kind supplements the rule, so a producer should send its notice in whatever form the order requires.

Hypothetical Illustration

A retailer’s lawyer, reading opposing counsel’s deposition exhibit list, recognizes an outside-counsel advice memo that the retailer produced weeks earlier. He tells the retailer’s general counsel in the hallway that it must have gone out by mistake, and the two agree to take it up after the deposition. Nothing reaches the other side. Three weeks later, opposing counsel quotes the memo in a motion. The retailer never gave notice, so the recipient has been told nothing that obliges it to return, sequester, or stop using the memo, and the retailer’s silent weeks are what it will have to explain when it argues that it acted promptly.

A distributor’s lawyer finds two privileged emails in a production she supervised. The next morning she sends each recipient a letter that lists the emails by production number, date, and author; describes them as confidential communications with outside counsel seeking legal advice; asserts the attorney-client privilege; and invokes Rule 26(b)(5)(B). The distributor keeps a copy of both emails in its own files. The letter identifies what must be sequestered and why, the recipient’s duties begin on receipt, and the distributor holds a dated record of a prompt corrective step.

Exam Analysis Steps

A notice must trigger the recipient’s duties, give the court something to evaluate, and document promptness all at once, so it is best drafted from a short checklist:

Identify each claimed document by production number, date, author, or similar detail, so the recipient knows exactly what to sequester.
State the privilege or trial-preparation protection claimed and the facts supporting it, without revealing the protected content.
Send the notice to every party that received the information as soon as the mistake is found, and keep proof of the date sent.
Preserve the claimed information in the producer’s own files until the claim is resolved.
Check the protective order or stipulation for notice requirements, deadlines, and procedures that apply in addition to the rule.

Duties of the Receiving Party

Once notice arrives, Rule 26(b)(5)(B) places four obligations on the recipient, three commands and one permission. The recipient must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; and must take reasonable steps to retrieve the information if it disclosed it before being notified. It may also promptly present the information to the court under seal for a determination of the claim.¹¹ Each obligation closes a different route by which a mistaken production could keep doing harm.

The first duty reaches every copy. The recipient may return the information, destroy it, or sequester it, which means setting it aside so that no one reads or uses it. A duty that stopped at the original would let a recipient comply on paper while its team kept working from a duplicate in a binder, on a shared drive, or in a review platform. The three methods leave different things behind. Return or destruction ends the recipient’s access entirely, and the producer’s separate duty to preserve keeps the document available to a court. Sequestration keeps the document where the recipient can present it for a ruling if it disputes the claim. Speed matters because every day the material sits in an adversary’s files raises the chance that someone reads it, summarizes it, or forwards it.

Protective orders sometimes supply return mechanics of their own. One stipulated order provides that when a party has inadvertently produced information subject to a claim of privilege or immunity, the other party must, upon request, promptly return it; the returning party may then move for an order compelling production but may not argue that the inadvertent disclosure waived the privilege.¹² Returning material, in other words, does not concede the claim; it moves the argument to a court. That bar on waiver arguments comes from the order, not from Rule 26(b)(5)(B), which leaves the waiver question to Rule 502(b). Partial compliance leaves the duty unmet, because the rule attaches the obligation to the specified information and every copy of it.¹³

The second duty freezes use. From notice until the claim is resolved, the recipient may neither use nor disclose the information, and resolution comes either by agreement of the parties or by the court’s ruling.¹⁴ The freeze gives the claim its meaning. If the recipient could keep using the document while a judge deliberated, a ruling for the producer would arrive after the information had shaped depositions, motions, and settlement talks, and no later order could undo that influence. Use and disclosure are separate prohibitions, one aimed at the recipient’s own strategy and the other at passing the material to anyone else, and the recipient must honor both.

The third duty addresses material that has already left the recipient’s hands. The rule requires reasonable steps to retrieve the information if the recipient disclosed it before being notified.¹⁵ Picture a recipient whose lawyers skimmed the production, saw nothing alarming, and sent one document to a retained expert, who built it into her damages model. The notice arrives, and the expert still has the document. Without a retrieval duty, the recipient could answer that its own files were sequestered while the document kept circulating among vendors and experts whom the producer cannot reach. The standard is reasonable steps, so the rule does not guarantee that retrieval succeeds, but it does require the recipient to try.

The fourth provision is the only permission. A recipient that doubts the claim may promptly present the information to the court under seal for a determination of the claim.¹⁶ The permission spares a recipient that believes the document is not privileged, or that any privilege was waived, from choosing between honoring the freeze indefinitely and breaking it. Because the rule itself authorizes the sealed presentation, taking that step does not breach the duty not to use or disclose. The next subsection explains how the court then decides the claim.

Stipulated protective orders often restate these duties and add detail, so a recipient must read the governing order as well as the rule. Some incorporate the rule wholesale. In Niagara Bottling v. Rite-Hite and Crannage v. Gold’s Gym, the stipulated orders provide that once a producing party gives notice that inadvertently produced material is privileged or protected, the receiving parties’ obligations are those in Rule 26(b)(5)(B), and they leave undisturbed any e-discovery order that provides for production without prior privilege review.¹⁷ Orders in this form also let parties who agree on the effect of disclosure under Rule 502(d) and (e) write that agreement into the stipulated protective order, a point developed later in this chapter.¹⁸

Other orders turn the rule’s general word “promptly” into dates. The Oddo order gives the recipient five business days from receipt of the written assertion to sequester the information, protect it against further disclosure, and return or destroy all copies, and it requires counsel’s certification that this has been done.¹⁹ It also provides that produced documents containing privileged information or attorney work product must be returned immediately if they appear privileged on their face.²⁰ A recipient that satisfies the rule’s general standard can still violate an order that fixes a date or demands a certificate.

Exam Analysis Steps

The duties begin with the notice and reach beyond the recipient’s own files, so the recipient’s response is best run in sequence:

Confirm that a notice of a privilege or trial-preparation claim has arrived, and identify exactly which information and copies it specifies.
Promptly return, sequester, or destroy every specified copy, and stop all use and disclosure of the information until the claim is resolved.
Trace whether the information went to anyone before the notice, such as a vendor, an expert, or co-counsel, and take reasonable steps to retrieve it from each.
Decide whether to dispute the claim, and if so, present the information to the court under seal instead of continuing to use it.
Read any protective order or stipulation for shorter deadlines, certifications, or other procedures that supplement the rule.

Lawyers most often miss the third step, because it concerns people outside the recipient’s own file, and it is the step the rule adds beyond a simple instruction to give the document back. An exam stem that mentions an expert or vendor who already holds the document points to that duty.

The duties above are procedural. Professional-conduct rules run on a separate track, and even in ordinary discovery a request is likely to cross an ethical line when it plainly seeks privileged or otherwise protected information.²¹ The next section takes up the recipient’s ethical duties.

Resolving the Privilege Claim

Rule 26(b)(5)(B) sends a contested clawback to a judge. After notice, the recipient “may promptly present the information to the court under seal for a determination of the claim,” and the producing party “must preserve the information until the claim is resolved.”²³ Together with the recipient’s duty not to use or disclose, these provisions freeze the document while the dispute runs: the recipient cannot put it to work, and the producer must keep its own copy intact. The judge therefore decides on an unchanged record. The freeze lasts only until the claim is resolved, so a ruling for the producer ends in return or destruction of the material, and a ruling against the producer lifts the freeze.

The structure replaces self-help with neutral adjudication. A recipient that decided for itself that a recalled memo was not privileged would be judging its own case, and any use it made of the memo before a ruling could not be undone by a later order, because the information would already have shaped questions, motions, and settlement talks. Presenting the material under seal lets the judge see exactly what is at stake without publicizing it, so the review does not become a second loss of confidentiality. Preservation does matching work on the producer’s side. The recipient’s step is a permission and not a duty: a recipient that accepts the claim simply complies with the command to return, sequester, or destroy, while one that disagrees has a lawful outlet for its disagreement. The usual error is to treat disagreement with the claim as permission to act on it.

Hypothetical Illustration

Within a day of receiving notice that a memo was produced by mistake and is protected by the attorney-client privilege, a recipient’s lawyer rereads the memo, concludes that it covers only business strategy, and quotes it in a motion filed that afternoon. He used the information before the claim was resolved, and his doubt about the claim is exactly the situation the sealed presentation exists to handle.

A second recipient, facing the same notice and the same doubts, sequesters every copy, lodges the memo with the court under seal with a request for a ruling, and leaves it unused while the producer keeps its own copy. That recipient may use the memo only if the court rules that it is not protected or that any protection was waived. The two recipients differ only in where they sent their disagreement.

The court decides two things, which is why the rule speaks of resolving the claim and not of a single yes-or-no question. It decides whether the information is privileged or protected at all and, if it is, whether the protection was waived. Waiver presupposes a protection to lose, so the first question comes first. Rule 502 defines attorney-client privilege and work-product protection by reference to what applicable law provides, so the underlying privilege and work-product law answers the first question.²⁴ Rule 502(b) supplies the answer to the second for disclosures within its reach, asking whether the disclosure was inadvertent, whether the holder took reasonable steps to prevent it, and whether the holder promptly took reasonable steps to rectify the error.²⁵ A recipient therefore has two lines of attack that call for different evidence. One concerns the content and circumstances of the communication, and the other concerns the producer’s conduct before and after production.

The waiver question matters because, in the past, a disclosure could constitute a waiver and, in some circumstances, a subject-matter waiver, which would require the client to produce all privileged communications on the same subject as the disclosed documents.²⁶ The later section on the scope of any waiver returns to that exposure.

Burden and review tools shape the first question. Under the stipulated order in Oddo, the party claiming privilege retains the burden of establishing the privileged or protected nature of the disclosed information, and any party may petition the court for in camera review of it.²⁷ The allocation fits the facts, since the claimant knows who wrote the document, to whom, and why. In camera review, in which the judge reads the document privately without showing it to the other side, matters here because a clawback notice describes the document without revealing it, so a challenge to the description can be settled only by someone reading the document. By comparison, United States v. Zolin held, in the crime-fraud setting, that Federal Rule of Evidence 104(a) does not prevent a court from reviewing allegedly privileged material in camera. The Court also made clear that trial judges are not required to do so and that the adversary must show a factual basis adequate to support a good-faith belief that inspection will reveal that the exception applies.²⁸

A stipulated order can also narrow the fight. Under the order in Oddo, the receiving party may move to compel production of the disclosed information, but the motion must be filed under seal and may not assert “the fact or circumstances of the production” as a ground for relief.²⁹ That limit keeps the producer’s mistake out of the argument and leaves the dispute centered on whether the material is privileged. Without such an order, a recipient will usually press both lines of attack, and the producer must be ready on each. The later discussion of orders and agreements returns to these arrangements.

Following the clawback procedure and winning the waiver question are separate achievements, because the first is procedure and the second is substance. The sealed submission protects confidentiality while the dispute is pending, but the ruling on waiver turns on Rule 502(b), which lists following Rule 26(b)(5)(B), where applicable, as part of the reasonable steps a holder must promptly take to rectify the error.³⁰ The word “including” marks the clawback as one example of such a step and not as a safe harbor, which still gives a proper, prompt notice real weight on the third condition. The notice cannot carry that condition alone, because it must also be prompt, and a notice sent months after the holder learned of the mistake follows the rule yet fails the promptness requirement. The notice also says nothing about the first two conditions, since a letter written after production cannot show that the disclosure was genuinely inadvertent or that the screening before production was reasonable. A holder that sent notice the morning after discovery but ran no real review before producing has strong evidence on the third condition and a gap on the second.

Exam Analysis Steps

The court decides in a fixed order, and the burdens differ at each stage, so the ruling is best run as a sequence:

Confirm that the producer gave notice of the claim and that the recipient has either returned, sequestered, or destroyed the information or presented it to the court under seal, with no use or disclosure in the meantime.
Ask the claimant to establish that the material is privileged or protected under the underlying law, as the order in Oddo requires of the claiming party, using in camera review if the notice’s description cannot settle the question.
If the material is protected, apply Rule 502(b) by asking whether the disclosure was inadvertent, whether the holder took reasonable steps to prevent it, and whether the holder promptly took reasonable steps to rectify it, treating a prompt Rule 26(b)(5)(B) notice as evidence on the third condition only.
Release the freeze according to the result, so that the recipient returns or destroys the material if the protection survived and may use it if the material is not protected or the protection was waived.

The second step comes before the third because a recipient who shows that the document was never protected wins without any inquiry into the producer’s screening or speed. An exam stem that gives detailed facts about the producer’s review is signaling the third step, and it reaches that step only after the privilege question has been answered in the producer’s favor.