“Reckless” Production, Inadequate Clawback Agreement Result in Waiver of Privilege
Irth Sols. LLC v. Windstream Commc’ns LLC, No. 2:16-CV-219, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)
In this case, despite the existence of a clawback agreement (not an order) indicating that “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege,” the court found that privilege was waived by the inadvertent but “completely reckless” production of privileged materials … twice. In so concluding, the court rejected the notion that a clawback agreement always protects against waiver, regardless of its terms, and instead indicated its support for courts that have precluded protection from a clawback agreement when the disclosure was “completely reckless” and for a framework that allows a court to rely on Fed. R. Evid. 502(b) when a clawback agreement fails to provide sufficiently concrete terms.