What is a clawback agreement and FRE 502(d) order, and how do they protect inadvertently produced privileged documents?

In large-scale e-discovery, parties often exchange hundreds of thousands of documents. Even with careful review, privileged material — such as attorney-client communications or attorney work product — can slip into a production by mistake. Two related mechanisms help limit the consequences: clawback agreements and orders entered under Federal Rule of Evidence 502(d).

Clawback agreements

A clawback agreement is a contract between the parties to a litigation. It establishes that if privileged or protected material is produced inadvertently, the producing party may demand its return (or destruction) and the receiving party agrees to comply, rather than treating the disclosure as a waiver of privilege.

These agreements typically address:

• How a party notifies the other of an inadvertent production.
• The receiving party’s obligation to sequester or return the material.
• That the parties do not intend the disclosure to waive privilege.

Because a clawback agreement is just an agreement between the parties, its protection against third parties or in other proceedings can be limited.

FRE 502(d) orders

Federal Rule of Evidence 502(d) lets a federal court enter an order stating that disclosure of privileged or work-product material in that proceeding does not waive the privilege — and that the non-waiver also applies in other federal and state proceedings. Because it is a court order rather than only a private contract, a 502(d) order generally offers broader and more durable protection than a clawback agreement alone. Many practitioners recommend entering one early, and the two tools are often used together.

Why they matter for records and IT teams

These protections reduce, but do not eliminate, the risk of waiver. Courts still expect reasonable care in reviewing productions, and the terms of any order or agreement control how clawbacks actually work. Sound information governance — accurate records, defensible search, and documented review — supports a credible position that any disclosure was inadvertent.

Rules vary by jurisdiction. State courts have their own evidence rules, and other countries follow different frameworks, so confirm the governing rules and consult counsel for any specific matter.