Clawbacks: Trick or Treat?

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 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.

Into this morass of hope, fear, and confusion comes one of the stars of e-discovery, Magistrate Judge David Waxse. He has a new opinion on clawbacks coupled with a model clawback orderRajala v. McGuire Woods, LLP, 2010 WL 2949582 (D. Kan. July 22, 2010). Still, fear remains deep in the hearts of some lawyers, they contend that this new ruling has done more harm than good. They warn that if this ruling is followed, it will doom the claw. The clawback will be misused by dark-side lawyers and naive judges. The claw will transform into hideous quicksand that will suck the life out of the attorney-client privilege and the already severely weakened work-product privilege. They warn of the dangers of the Dementor’s claw.

The Clawback is a Treat

A clawback agreement is premised on the producing party making a full review before production. It is governed by Rule 26 (b)(5)(B), Federal Rules of Civil Procedure, and Rule 502 Federal Rules of Evidence. Those that fear the claw do so because they mistake it for a quick-peek agreement. There is nothing in the rules of procedure or evidence requiring any party to enter into a quick-peek agreement. In a quick-peek agreement the parties agree that production will be made without review by the producing party before they make production, or with only a cursory, partial review.

Quick-peek is very scary to most organizations whose ESI is filled with trade-secrets and privileged communications. They never want the bells to be rung, especially within earshot of parties and lawyers who are suing them. They know that those bells might give new ideas for new suits, perhaps frivolous suits, but ones they know could anyway lead to big cash payouts. In quick-peek the receiving party will have full review of the documents before the producing party. The receiving party after this full review will then advise the producing party which documents it considers relevant and wants to use. The receiving party returns the rest.

The producing party in the quick-peek then looks at the documents that the receiving party has decided to keep. The producing party then has a chance to determine whether it wants to claim privilege to any of them, or otherwise wants any of them back for other reasons, such a relevance or confidentiality. For instance, the producing party may claim a right to redact, or to withhold all together. The receiving party then either agrees, or not. The documents on which they agree are then returned to the producing party. The documents on which there is no agreement on the producing party’s claim of privilege, confidentiality, or irrelevance, are then the subject of adjudication by the court.

If the producing party prevails, he gets his secret documents back. But the secret is still out. The bell cannot be unrung. Only the documents are returned, not the knowledge they conveyed. Forced lobotomies are illegal, even on plaintiff’s counsel (grin).

Clawback are like the quick-peek procedure, but with one very important difference. In clawback the producing party reviews the documents before producing. If the review misses some privileged documents, or confidential documents, and the producing party later becomes aware of the mistake, he has a second chance to keep his secrets. He can claw them back with a claim of privilege. If there is disagreement on privilege, he can bring the dispute to the court. He has a chance to correct the mistake. And, as all experienced e-discovery lawyers know, if a project is big enough, there are always mistakes. Perfection is impossible. In the words of Judge Scheindlin:

In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection.

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 at *1 (S.D.N.Y. Jan. 15, 2010).

Clawbacks are a kind of fail-safe method to safeguard against the inevitable mistakes. It is a second layer of protection. See EgHeriot v. Byrne, 2009 WL 742769 (N.D. Ill. March 20, 2009) (plaintiff’s were able to clawback the privileged secrets they accidentally produced in a dispute about the movie, The Secret). While quick-peek might be very dangerous and inadvisable to most clients, there is nothing to fear in the claw. It is your friend. It helps you to keep your secrets, secret. If they slip away, you can get them back. The claw is a treat and should be used whenever possible. Or is it?

The Clawback is a Trick

The ill-informed fear clawback agreements because they have never worked with them before and they naturally fear anything new, especially new legal rules with an ominous name like clawback. They think it is essentially the same thing as a quick-peek. They do not understand that the clawback agreement gives them the right to review to their heart’s content before they produce. Once they better understand the protections provided by Rule 26 (b)(5)(B), Federal Rules of Civil Procedure, and Rule 502 Federal Rules of Evidence, and become more familiar with the new laws and procedures, they embrace the claw. They see it as a panacea for the inevitable mistakes that haunt all large projects, mistakes made despite reasonable efforts to find and withhold all privileged documents.

Others know the claw, but still still fear it. They have read the case-law and seen how some parties and judges construe the provisions of Rule 502(b) requiring “reasonable precautions to prevent disclosures.” See Eg. Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010) (A terrifying decision where a first class law firm’s extensive and sophisticated efforts were still held to be unreasonable because of a computer error by the vendor that the magistrate, blinded by hindsight, tinged with naiveté, thought should have been caught.) They say this requirement of reasonable precautions makes clawback protection illusory. It subjects their right of confidentiality to the whims of a judge called upon to decide reasonability. The judge may be blinded by 20/20 hindsight. They may not understand the difficulties of e-discovery, nor the inevitability of some mistakes in spite of reasonable efforts. They may hold a party to an impossible standard of perfection disguised as hindsight reasonability. This is exactly what happened in Mt. Hawley Ins. Co.

Still, others counter, this is better than no protection at all. Some judges may get reasonability wrong, but others will get it right. Many will be able to convince a judge that they met the criteria of  Rule 502(b): inadvertence, “reasonable precautions to prevent disclosure,” and “reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error.” The holder, as the rule puts it, in other words, the producing party, is given a second chance by the rules to correct the mistake. This means you have nothing to lose by the claw and everything to gain. Moreover, and here is the ingenious part, you can protect yourself against all of the vagaries of Rule 502(b) by careful wording of the agreement and entry of a court order.

This is where the very sophisticated practitioners grow confident with the claw and see it as a delicious candy in their bag of e-discovery treats. Here is what you do. You fashion a clawback agreement where the parties all agree to waive the reasonability provisions of 502(b), in whole or part, at least the “reasonable precautions to prevent disclosure” requirement, which is really the only dangerous one. Alternatively, or perhaps in addition, both sides make disclosure of what they are going to do to try to prevent inadvertent disclosures and they stipulate as to its reasonability. Then you have inoculated yourself against newly vindictive opposing counsel or mistakes of a errant judge. The judge in that circumstance is required to order the return of the accidentally produced documents and to do so without proof of reasonable efforts.

When the claw has these provisions in the agreement it becomes much cleaner and reliable. But, what happens when the other side will not agree? What happens when they want to preserve the right to play gotcha? To keep your secrets. To use your secrets against you in this and other lawsuits, even though it is obvious you did not mean to produce them. They want to preserve the right to play a Dementor, and keep your soul, your secrets, by defeating your Patronus Charm, your attempt to prove reasonable efforts.

Many shun the claw because they think it is a waste of time to try to get an agreement. They already know, or think they know, that opposing counsel is a Dementor type who will never agree to anything. It takes two to make a clawback agreement, they reason. So why bother? Well, first of all, you may be wrong, so you should at least ask, the more optimistic argue. If they refuse, try to see if they have a reasoned explanation. They probably will not. It will become obvious to the judge that they are just trying to play gotcha, a Dementor-like steal your secrets kind of gotcha at that. You can then apply to the court to have a clawback order entered, even though there is no clawback agreement between the parties. A clever ploy based on a reasonable construction of Rule 502. So, in any event, no matter how demented your opposing counsel may be, the claw is good. It is a treat, not a trick.

Rajala v. McGuire Woods

This last maneuver is exactly the strategy sucessfully employed by the defendant in Rajala v. McGuire Woods. The plaintiff suing McGuire Woods would not agree to the clawback agreement they proposed. So, they went to the judge, David Waxse, a noted authority on e-discovery in general and Rule 502 in particular. He then gave the defendant what they wanted, a clawback order with no need to prove reasonable efforts, just inadvertence. Slam dunk, and game. The defense wins and now has the upper-hand against the Dementors who would steal their secrets. That is good for McGuire Woods in this case, but is it good for the law? Is there a danger that the judicial power to impose clawbacks may strengthen the Dementors?

The outcome in Rajala is not surprising to those of us who go to lots of e-discovery CLEs, although it is, to my knowledge, the first opinion where a judge has entered a clawback order without an underlying agreement. Like many others, I have heard Judge Waxse speak about clawbacks and Rule 502 on several occasions. I recall one event last year, Georgetown, where Judge Scheindlin publicly suggested that judges should consider entry of a clawback order in every case. That they should do so as a matter of course, automatically, without anyone asking for it. Make it a part of their local rules and standard 16(b) orders. That would streamline adjudication in accord with Rule 1 and spare everyone needless privilege waiver disputes.

There were many judges at the Georgetown event, including Judge Waxse, Judge Grimm, and others. In the public dialogue that followed at Georgrtown there was no consensus as to the wisdom or authority to automatically enter a clawback order in every case, even where no one asked for it. There was, however, general consensus that the judges had the authority to do so, that they could do so on their own initiative, sua sponte, or could do so when only one side agreed and the other opposed. No one spelled that out exactly nor stated the specific authority to do so. There was just a general consensus that they could do it.  So it was not surprising to see Judge Waxse do exactly this in Rajala and come up with legal grounds for his authority to do so.

Judge Waxse begins the legal discussion in Rajala, Id. at *3, with an explanation of the claw, which is here repeated without footnotes:

So-called “clawback” provisions “essentially ‘undo’ a document production” and allow the return of documents that a party belatedly determines are protected by the attorney-client privilege or work product immunity. As the court noted in Zubulake v. UBS Warburg LLC, “many parties to document-intensive litigation enter into … ‘claw-back’ agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privileged documents.” Thus, a clawback arrangement involves the return of attorney-client privileged documents or protected work product without waiver, and, typically, the materials are returned irrespective of the care taken by the disclosing party.

Note how Judge Waxse repeats an earlier quote by Judge Scheindlin in Zubulake. Unfortunately, this quote is the source of much of the confusion between clawbacks and quick-peeks and I wish judges and lawyers would stop quoting it for that reason. Clawback agreements are not designed to “allow the parties to forego privilege review altogether.” They are designed to give parties some comfort that if their review fails, as it must in any large project, they can still get their secret documents back. Quickpeeks are designed to allow parties to forego review altogether. Clawbacks may allow you to notch down the review effort and expense, but not eliminate it. This mixing of the two doctrines may be, as I have suggested above, an ominous sign of terrible things to come. But we will get back to that at the end of this essay where I will finish with the doom and gloom predictions of some on the potential negative impact of Rajala.

Judge Waxse finds his authority to enter the clawback order without an agreement in the Evidence Rules Advisory Committee explanatory notes concerning Rule 502 and in a Statement of Congressional Intent made as part of the approval of Congress to this amendment to the federal evidence statutes:

Significantly, the Advisory Committee also explains that entry of an order containing a clawback provision is not dependant on the agreement of the parties. The Committee states with respect to subsection (d) of Rule 502: “Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court’s order.” Furthermore, the Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence (“Statement of Congressional Intent”) explains that subsection (d) “is designed to enable a court to enter an order, whether on motion of one or more parties or on its own motion, that will allow the parties to conduct and respond to discovery expeditiously, without the need for exhaustive pre-production privilege reviews, while still preserving each party’s right assert the privilege.” [FN34] In other words, a court may fashion an order, upon a party’s motion or its own motion, to limit the effect of waiver when a party inadvertently discloses attorney-client privileged information or work product materials.

Id. at *4.

Judge Waxse must look to these commentaries because Rule 502 itself is silent on the issue of a court’s authority to issue a clawback order without an underlying agreement. So too is Rule 26 (b)(5)(B), FRCP. In fact, as Judge Waxse acknowledges in footnote 35, Rule 26(f) speaks of entry of clawback orders where the parties have entered into clawback agreements. Note that the quoted commentaries on 502 get it right. They do not say that a clawback is designed to allow parties to forego privilege review. No one in their right mind, or with two-cents to rub together, completely foregoes privilege review, not if they think there are any privileged documents of importance in their ESI collection. Instead, with the comfort of the claw, they can scale it down so that it is not exhaustive. For many companies exhaustive means repeated reviews and re-reviews costing millions of dollars.

Judge Waxse finds explicit authority to enter a clawback order without agreement in the Federal Rules of Civil Procedure, namely under Rule 26(c)(1) allowing for protective orders. That is why Judge Waxse calls his clawback order a protective order.

*5 As a threshold matter, the Court must determine whether it has the authority to enter a clawback provision where not all parties agree to one. [FN35] The Court holds that it does have such authority and that its authority arises under Federal Rule of Civil Procedure 26(c)(1) to fashion a protective order. Under the express terms of Rule 26(c)(1), the Court may, “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” [FN36] The Court may, inter alia, enter an order under subsection (B) “specifying terms, including time and place, for the disclosure or discovery.” [FN37] …

The Court holds that the entry of an order containing a clawback provision falls within the purview of Rule 26(c)(1). Such an order, under the appropriate circumstances, could protect a party or parties from the undue burden and expense of reviewing vast numbers of documents for privilege before they are produced. In addition, such an order would fall squarely within subsection (B) of Rule 26(c)(1) because it specifies the terms under which documents will be produced.

Judge Waxse uses as a rationale the protection of a party from the undue burden and expense of reviewing. I would have preferred him to say “exhaustive” reviewing. To just saw reviewing implies that no review at all is contemplated. Although Judge Waxse well understands the difference between claw and peek, many judges and lawyers do not. This mixing of the two procedures is at the core of why some fear Rajala and the judicial activism in this area that it portends. But before we go into that dark place, it is interesting to see the rest of the ruling in Rajala.

Having found authority to enter a 502 type clawback order disguised as a protective order under Rule 26(c)(1), Judge Waxse must then consider whether the defendant producing party, McGuire Woods, has shown good cause for a protective order as required by Rule 26. They did and here is how:

The Court holds that McGuire Woods has met its burden to show good cause for an entry of an order containing a clawback provision. Discovery in this case will include production of an extensive amount of ESI, including a large number of e-mail messages. Furthermore, because McGuire Woods is a large law firm with thousands of clients, there is the potential for its production of ESI and documents to inadvertently disclose other clients’ attorney-client privileged and work product materials. Thus, the risk of inadvertent disclosure of privileged or work product documents appears high. Furthermore, it is likely that disputes regarding the inadvertent disclosure of privileged and protected documents would disrupt the discovery process and cause the attorneys in this case to expend significant resources and time arguing about what steps were taken to prevent disclosure and to rectify the error and about the scope of the waiver. Numerous discovery motions have already been filed in this case; the Court sees no reason to invite more.

Indeed, the Court finds that this case is precisely the type of case that would benefit from a clawback provision. Such a provision will permit the parties to conduct and respond to discovery in an expeditious manner, without the need for time-consuming and costly pre-production privilege reviews, and at the same time preserve the parties’ rights to assert the attorney-client privilege or work product immunity.

Id. at *6.

Again, the reference “without the need for … privilege reviews.” What Judge Waxse really means is what Rule 502 commentary said, exhaustive privilege reviews. The defendant law firm here was obviously still going to do privilege reviews, and I bet expensive ones at that. The secrets of their other clients were at stake. There is no bigger deal to a law firm than keeping their client’s secrets. McGuire Woods was not seeking to forego privilege review. They were just seeking more protection. That is clearly implied in the next quote where Judge Waxse rejects plaintiff’s counter-arguments.

Judge Waxse easily dispose of the gotcha based arguments of the plaintiff  who opposed entry of the clawback protective order:

The Court is not persuaded by any of the reasons Plaintiff advances for not entering a clawback provision in this case. To deny entry of such a clawback provision merely because Plaintiff would be deprived of the opportunity to demonstrate that the producing party had not taken reasonable care to prevent disclosure would defeat the purpose behind Rule 502(d) and (e). The goal is not to encourage disputes regarding waiver and inadvertent production, but to prevent such disputes from arising in the first place. Furthermore, the clawback provision proposed by McGuire Woods, by its express terms, governs the “inadvertent” disclosure and production of attorney-client privileged and work product materials. If Plaintiff should find evidence that McGuire Woods is abusing the clawback provision by engaging in a “document dump” and making no effort whatsoever to review for privilege or protected documents, Plaintiff would not be foreclosed from seeking appropriate relief from the Court.

Id. at *7.

The summation that follows by Judge Waxse is good and shows he does not expect or intend the producing party to forego review, just make it less exhaustive:

In sum, the Court holds that entering an order with a clawback provision to govern the inadvertent disclosure of attorney-client privileged information and work product materials would serve the purposes behind Federal Rule of Evidence 502. It is also consistent with the Court’s duty under Federal Rule of Civil Procedure 1 to “secure the just, speedy and in-expensive determination of every action.” [FN46] In addition, the court finds that such a provision would protect McGuire Woods from the oppression and undue burden of an exhaustive pre-production privilege review. Accordingly, the Court concludes that McGuire Woods has shown good cause for the entry of an order containing a clawback provision that will be governed by Federal Rule of Evidence 502(d).

The Release of the Dark Lords

Many applaud Judge Waxse’s use of a protective order to impose a clawback agreement on the parties, whether they wanted it or not. They say this creative approach eliminates the defects in the clawback rules that speak in terms of an agreement. It takes away the power of one party to arbitrarily sabotage and prevent full clawback protection of the other under Rule 502. It takes away the power of a David to stone a Goliath with challenges to reasonability of review. To use this essay’s analogy, it takes away the power of the Dementor’s kiss. The authority of a court to enter a clawback protective order provides everyone with the full protection of Rule 502 that Congress intended. If one or both sides refuse the protection of an agreement, it can still be imposed by a protective order. Like it or not, the claw is coming to protect you all. But will it really protect you? Or will it set you up for a Dark Lords kill.

Some fear Rajala as the beginning of the end. They predict that the sua sponte imposition of the claw, even over one party’s objection, could actually embolden the Dementors. They fear a day when this power is exercised by a judge less-wise in the ways of e-discovery than Judge Waxse. They fear a day when the small plaintiff, one with just tiny bits of ESI, will seek to impose a clawback upon the big defendant with thousands of computers. They fear a day when one side, big or small, will seek to foist the claw upon the other because they think it will give them a strategic advantage. They fear the Dementor’s kiss still, the loss of secrets, the ringing of bells that can never be unrung. They look into the future and see the potential release of great evil, he who must not be named, from this new-found judicial power. They foresee a day when the claw will be a powerful weapon in a new bag of dirty tricks of the Dark Lords.

How could that be you may ask? The claw protects. Yes, but the claw can also lull a judge into a false sense of security. The clawback can, many fear, easily be converted into the dreaded quick-peek. It can happen by the imposition of impossibly short review times. For example, the court imposes a clawback order and in the next breath orders production of a million emails by the end of the following week. You know that is impossible, but the other side claims it is not, and that anyway, what are you worrying about, you have the protection of the claw? That is how the Dark Lords work.

The claw may encourage judges to impose ever shorter review times. It may encourage judges to force parties to forego privilege review entirely. When impossible, or just impractical production deadlines are added to court’s orders, you may be forced to forego review altogether, not just make it less exhaustive. The seeds of that development are already apparent in the case-law. The actual differences between claw and peek may well erode into mere words.

There is a legitimate fear here. Impossibly short production times can easily transform a clawback into a quick-peek. Now the ones who must not be named can see your secrets, can hear the bells. The damage is done by a single Dementor’s kiss, even a quick one. Opposing counsel and parties may well return the documents, but rest assured they will use this newfound knowledge against you somehow. A new law suit perhaps? Maybe with a different set of friendly class representatives? Or maybe your competitors in the marketplace, the one’s suing you or being sued for past transgressions, will, after having read your secret plans, now have a competitive advantage. Of course they will use it. The bell has been rung. A single peek, no matter how quick, is all that it takes.


There may come a day, perhaps quite soon, where the requesting party will ask for a clawback order, and at the same time, file a motion to compel. They will stop opposing the claw, as they tend to do now, and instead use it as a weapon. They will use the claw to oppose motions for extension of time to make production. They will argue that the responding party, usually a large corporate defendant, has the protection of the claw and so it is fair to compel production in just a few days. They will use the existence of the clawback as grounds to deny motions for enlargements of time. Their motions to compel, coupled with the alleged protection of clawback orders, will have the practical effect of forcing the responding parties to forego review. The clawback will thus have been used to force a quick-peek. The master plan of the Dark Lords will then be realized.

Many judges, who are sometimes quite insensitive to the need of lawyers and corporations to keep secrets, will be tricked by this logic. They will be lured into compelling production without review. They will be lured by the empty assurances that any secret documents can be returned. No harm done they will think. They do not understand how mean the streets of law can be. They just assume that there are no Dark Lords in the profession, only honorable, upright professionals. They assume that the few who are caught and punished are the rare exception, not the tip of the iceberg.

After thirty years in practice, I can tell you that is naive. There are more than a few lawyers out there, many of them quite successful, who only smile and act reasonable when judges are looking. When the judges turns away, their dark side reappears. The lawyers and litigants who are caught and sentenced are just the tip of an iceberg.

Still, the counter-argument to all that clawback doom and gloom is that large corporations are already facing the weapon of impossibly short deadlines. They are already under the gun to review too quickly. They are already pressured into peeks that are much too quick for adequate quality control. At least the claw allows them to get the documents back and keep them off the Internet and groups of like-minded lawyers. That is true (maybe), but will the clawback order embolden judges and opposing counsel to make review times even shorter? It does seem inevitable in the long run, especially when you consider the accelerating growth of ESI.

This means that the race will be won by the swift. Nothing new or scary about that. That is, unless you are slow, unless you do not know how to do fast, quality reviews. Then it should be very scary. Eventually the large corporations and law firms, who are the ones that care most about confidentiality, will move all of their work to the fast, to those who know. The impossibly short deadlines will certainly prevent page-by-page manual review, but is that really necessary for quality review? No. It is not. There is a better way. It involves  innovation and technology. The race will be won by those who embrace these new methods and go beyond page-by-page human review.

The profession will in time be forced to cull, retrieve, and review with greater and greater reliance on automation. Our best hope is predictive coding, and other new techniques and proportional methodologies for review and defensible culling and retrieval. They are our strongest Patronus to avoid the quick-peek disclosure of all.

The lawyers who really know how to use these new inventions, or have licenses and training to use them, will eventually be able to meet the review deadlines. They will be able to do so without employing an army of reviewers and breaking the bank. That is the brute-force technique now used, dare I say enjoyed, by many law firms today. Clients will eventually awaken from the spell of old paper models, where attorneys eyes on every page is considered necessary. Big corporate clients will eventually stop rewarding inefficiency. In the near future, quality privileged document review may be accomplished in short order. The law firms and corporations that learn how to do this, and how to properly argue proportionality, will have a distinct competitive advantage. They will have a new Patronus to defeat the Dementors. Only they can defeat the Dark Lords and keep their secrets, secret.

To learn more about these new techniques and inventions, these new technologies and legal arguments, look for a paper I’ve written on predictive coding and the future of document review. It will be published as a White Paper by a major vendor and made public by the end of the year. I will tell you how to get it when it comes out and will talk about it at N.Y. LegalTech. I have other projects in the works in this, my favorite area, but they are still secret and I do not do quick-peeks.

In the meantime, if you are in the greater Washington D.C. area, consider attending a special one day CLE on Proportionality on November 3rd 2010. We will discuss many of these new ideas. I co-chair this event with Maura Grossman and we have a great lineup of teachers, including sitting Judges John Facciola, Paul Grimm, Andrew Peck and Frank Maas, former Judge Ron Hedges, and attorneys Jason Baron, Patrick Oot, Connor Crowley, and many other leaders in the field. Now that is a treat. It is sponsored by Capital One, provides CLE credits, and is free. It takes place on November 3rd at the Capital One headquarters, just outside Washington in Mclean, VA. Seating is limited, so you need to register now, or it will be too late. To register, send an email to I hope to see you there. Please stop by and say hello during a break. I always like to meet my readers, even the Dark Lords.



6 Responses to Clawbacks: Trick or Treat?

  1. Aaron Taylor says:

    An excellent review and explanation of the two processes, their similarities and differences; and, most importantly, the impact of the sea-change in the willingness of a court to summarily implement a clawback.

    Great essay – I will look forward to your coming white paper.

    Aaron Taylor

  2. […] e-Discovery commentator Ralph Losey has published another thoughtful and entertaining piece on clawback agreements. Mr. Losey reviews Judge David […]

  3. Your perspective on where the clawback provisions are likely headed is expertly analyzed. Should the use of protective orders help to cloak the affects of the clawback without both parties agreeing, clearly the requesting party will be the beneficiary of certain advantages.

  4. Bob Rohlf says:

    Thanks for a great explanation. You are one of my favorite bloggers. I appreciate the effort you put into making explanations both clear and entertaining. We should all be as gifted in our communications skills!

  5. […] David Waxse’s then new  opinion on clawbacks, which included a model clawback order. See Clawbacks: Trick or Treat?  The order was entered at the request of the defendant in Rajala v. McGuire Woods, LLP, 2010 WL […]

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