The clawback provision in one reported case was three bullet points in an email, and it failed. The provision in another called itself a Rule 502(d) order and held up, even though the producing party was accused of giving away some 360 documents that referred to its lawyers. The papers below try to be closer to the second.

How to use this toolkit

Copy, conform, and cut. Everything in [brackets] is yours to fill in. Check each paper against your local rules, the judge's standing orders, and any model order the court prefers. Some judges want their own form, and a court's model order usually beats a clever one unless you can say why it needs a change.

The papers are organized by when you need them. Tools 1 to 3 are for the start of a case. Tools 4 to 6 are the review. Tools 7 to 11 are for the bad day. Tools 12 and 13 are for the motion. Each one has an owner and a time so that someone can actually be assigned to it.

For the doctrine behind these forms, read Rule 502 and Inadvertent Production: Waiver, Clawback Agreements, and Why Every Case Needs a 502(d) Order. For sequence and judgment calls, see Recovering an Inadvertently Produced Privileged Document: A Practical Guide. A check-off version lives at Privilege Clawback and Rule 502 Checklist: A Practical Checklist.

Contents

  1. Rule 502(d) order
  2. Clause bank and options
  3. Motion for entry over objection (outline)
  4. Reviewer protocol
  5. Privilege QC worksheet
  6. Generative AI and TAR addendum
  7. Producing-side first-day action sheet
  8. Clawback notice
  9. Sequestration response and contest letter
  10. Quarantine stipulation
  11. Deposition scripts
  12. Rule 502(b) declaration outline
  13. Opposition to a clawback (outline)
  14. Decision matrix

Tool 1: Rule 502(d) order

Purpose: Remove waiver by production from the case, against everyone. Owner: Discovery lead, with the client's approval. Timing: Raise at the Rule 26(f) conference; file with the Rule 26(f) report; have it entered before the first production.

UNITED STATES DISTRICT COURT
[DISTRICT]

[PARTY], Plaintiff, v. [PARTY], Defendant.     Case No. [___]

[STIPULATED] ORDER UNDER FEDERAL RULE OF EVIDENCE 502(d)

The Court, [on the parties' stipulation / on motion of [PARTY] and for good cause
shown / on its own motion], ORDERS as follows:

1. Entry under Rule 502(d). This Order is entered under Federal Rule of Evidence
502(d) and shall be interpreted to provide the maximum protection allowed by that
rule.

2. No waiver by disclosure. The production or disclosure in connection with this
action of any document or information subject to the attorney-client privilege or
work-product protection ("Protected Material"), whether inadvertent or otherwise,
and regardless of the care taken by the producing person, is not a waiver of the
privilege or protection in this action or in any other federal or state proceeding.

3. Rule 502(b) displaced. The provisions of Federal Rule of Evidence 502(b) do not
apply to any production or disclosure covered by this Order. No person may contend
that a producing person's pre-production review, its timing, or its methods bear on
waiver under this Order.

4. Who is covered. This Order applies to all parties and to any non-party who
produces documents or information in this action and elects its protection by
written notice.

5. Clawback procedure. A producing person may give written notice identifying
Protected Material by Bates number or other specific description and stating the
basis for the claim. Within [3] business days of notice, each receiving party shall:
   (a) return, sequester, or destroy the identified material and all copies;
   (b) cease any review, use, or disclosure of it, including in depositions and
   filings, until the claim is resolved;
   (c) take reasonable steps to retrieve it from anyone to whom it was provided;
   (d) remove it, and any text, summary, index entry, or other data derived from it,
   from any review platform, analytics tool, or artificial intelligence system under
   the receiving party's control, or render such data inaccessible; and
   (e) confirm these steps in writing.

6. Duty on discovering apparent Protected Material. A receiving party's counsel who
encounters material that appears on its face to be Protected Material and to have
been produced by mistake shall stop reviewing it and promptly notify the producing
person. Doing so waives no right to contest the claim.

7. Challenges. Within [7] days of notice, a receiving party that contests the claim
shall state so in writing and the parties shall confer. If they do not resolve the
dispute within [7] further days, the receiving party may present the material to the
Court under seal or in camera for a determination. The receiving party may not base
a challenge on the fact of production or on the care taken before production. The
producing person bears the burden of establishing the privilege or protection, and
shall preserve the material until the claim is resolved.

8. Depositions and hearings. If Protected Material is used in a deposition or
hearing, the producing person shall object as soon as it recognizes the material. No
waiver arises from any failure to object at the time, if notice under paragraph 5 is
given within [7] days after the producing person actually learns of the use.

9. Intentional use. This Order does not protect material that the producing person
affirmatively uses in this action in support of a claim or defense. Federal Rule of
Evidence 502(a) governs the scope of any such waiver.

10. Replacement production and log. Within [14] days of notice, the producing person
shall provide any redacted version of the material, replacement media if requested,
and an updated privilege log entry.

11. Later actions. Nothing here limits a party's right to review documents for
privilege before production, or requires any review.

SO ORDERED. Dated: [___]                           ______________________
                                                   United States [District/Magistrate] Judge

Drafting notes

Tool 2: Clause bank and options

Purpose: Swap-in language for negotiation. Owner: Discovery lead. Timing: During the Rule 26(f) negotiation.

Issue Strong for producing party Compromise Stronger for receiving party
Trigger "whether inadvertent or otherwise" "produced without intent to waive" "inadvertently or mistakenly produced"
Care "regardless of care; Rule 502(b) does not apply" "regardless of care, unless the producing party made no effort at all to screen" Rule 502(b) applies, with a defined rectification period
Time to claw back "at any time" "within [30] days after actual knowledge" "within [10] business days of production or use"
Late claims none "not after the document has been used in a dispositive motion, absent good cause" "not after close of fact discovery"
Deliberate reversal silent "does not apply to material whose privilege claim was withdrawn in writing" same, plus any document reviewed before production
Deposition Paragraph 8 above "within [3] days after the deposition" "objection at the deposition required"

Compromise language on no effort at all:

Nothing in this Order prevents a party from seeking relief if a producing person engages in a wholesale production without any effort to screen for Protected Material, or if this Order is being used for an improper purpose.

Drafting note: This matches the safety valve in Rajala v. McGuire Woods, LLP, 2010 WL 2949582 (D. Kan. July 22, 2010), which left the door open for a party complaining of a "document dump." Second Circuit courts have read protective orders with a "completely reckless" exception, as described in irth Solutions, LLC v. Windstream Communications LLC, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017). Using an express test beats leaving the standard to the court.

Withdrawn claims language:

This Order does not apply to a document as to which the producing person withdrew a claim of privilege or protection in writing after considered review.

Drafting note: It reflects the result in Amtrak, and offering it costs little.

Nonparty notice language:

A non-party producing documents in this action may elect the protections of this Order by so stating in writing at or before production. Parties serving subpoenas shall attach this Order.

Drafting note: Rule 45(e)(2)(B) provides the procedure, but only an order creates the Rule 502(d) effect. See the proposed stipulated third-party order in City of Sterling Heights Police & Fire Retirement System v. Reckitt Benckiser Group PLC, No. 1:20-cv-10041 (S.D.N.Y. Sept. 16, 2022), and Rule 45 Subpoena Response Checklist: A Practical Checklist.

Rule 26(f) report language:

The parties will submit a proposed order under Federal Rule of Evidence 502(d) with this report. As contemplated by Rule 26(f)(3)(D), they propose that privilege logs be served [rolling, within [30] days of each production], using [metadata plus category descriptions].

Drafting note: Rule 26(f)(3)(D) and Rule 16(b)(3)(B)(iv) expect this discussion. The 2025 note stresses flexibility and warns against logs near the close of discovery. Rule 26 Initial Disclosures and Discovery Planning: A Practical Checklist has the conference agenda, and Negotiating an ESI Protocol and Managing E-Discovery Costs covers the rest of the protocol.

Tool 3: Motion for entry over objection (outline)

Purpose: Obtain the order if the other side refuses. Owner: Discovery lead. Timing: As soon as the impasse is clear, and before the first substantial production.

1. Introduction. [PARTY] asks the Court to enter the attached order under Fed. R. Evid.
   502(d). It applies equally to all parties. It does not decide whether any document
   is privileged and does not limit any party's ability to challenge a claim.

2. Authority.
   - Fed. R. Evid. 502(d) and the explanatory note: order may provide for return
     "irrespective of the care taken"; "Party agreement should not be a condition."
   - Statement of Congressional Intent: on motion or on the court's own motion.
   - Fed. R. Civ. P. 26(c)(1)(B), 26(f)(3)(D), 16(b)(3)(B)(iv), and 1.
   - Rajala v. McGuire Woods, LLP (D. Kan. July 22, 2010).

3. Good cause (facts by declaration).
   - Volume: [custodians, gigabytes, estimated documents].
   - Cost and time of exhaustive privilege review: [vendor estimate attached].
   - Schedule: [production deadlines].
   - Particular risks: [e.g., many lawyers on business emails; multiple clients].

4. Answering expected objections.
   - "We will do your privilege review." No. Producing parties still have every reason
     to screen, and the order imposes no review duty on the receiving party.
   - "We lose the Rule 502(b) argument." That's the purpose. Rajala: the goal is to
     prevent these disputes from arising.
   - "This invites a document dump." Offer the safety-valve language.

5. Proposed order attached.

Drafting notes

Tool 4: Reviewer protocol

Purpose: Give reviewers written, specific instructions; create evidence of reasonable steps. Owner: Review manager, approved by lead counsel. Timing: Before first-level review begins; update with each change.

PRIVILEGE REVIEW PROTOCOL: [MATTER] (v[__], [date])
PRIVILEGED AND CONFIDENTIAL: ATTORNEY WORK PRODUCT

1. Team. Review manager: [name]. Escalation attorney: [name]. QC lead: [name].

2. Lawyers and legal staff. Attachment A lists all in-house and outside lawyers,
   paralegals, and legal assistants, including former ones, nicknames, email aliases, and
   domains. Tell the manager immediately if you see a likely lawyer who is not listed.

3. What to code privileged. Code "Privileged: AC" if a communication is (a) between a
   client and a lawyer or their agents, (b) made in confidence, and (c) for the purpose
   of obtaining or giving legal advice. Code "Privileged: WP" if prepared in anticipation
   of litigation by or for a party or its representative. Lawyer involvement alone isn't
   enough. Absence of a lawyer doesn't end the question: look for employees relaying
   legal advice or gathering facts at counsel's request.

4. Warning signs that need escalation.
   - "legal," "counsel," "attorney," "GC," "Legal says," "per [lawyer]," "advice"
   - Forwarded threads where a lawyer appears only in lower messages
   - Signature blocks showing a lawyer's title
   - Documents prepared after [date litigation anticipated], or about the dispute
   - Third parties on privileged threads: [consultants list; note if within privilege]
   - Footers: "[standard company footer text]" does NOT by itself indicate privilege

5. Threads and families. Review the whole thread. If any part is privileged, flag for
   redaction review. Attachments are reviewed separately but with their parents in view.

6. Truncation and rendering. If a document looks cut off, garbled, or lacks a header,
   stop and escalate.

7. Redactions. Follow Attachment B. Redact only the privileged part. Don't redact for
   relevance.

8. Doubt. When unsure, escalate. Don't guess. Do not discuss documents outside the team,
   or paste them into any tool other than the approved review platform.

9. Quality control. Second-level review of all privileged-coded documents. Random samples
   of "not privileged" documents per Tool 5. Reviewer accuracy is tracked.

10. If you see something wrong in what we already produced, tell [name] immediately.

Drafting notes

Tool 5: Privilege QC worksheet

Purpose: Prove that the screen works, and catch problems before production. Owner: QC lead; signed off by a named lawyer. Timing: Each production volume, before release.

Item Result Who / date
Volume name and Bates range [___]
Documents in review population [___]
Documents coded privileged (withheld / redacted) [] / []
Name list version used v[__]
Text extraction check: percent OCR'd or text-extracted; exceptions handled [___]
Screen terms run across body, headers, and attachments? Y / N
Elusion sample from "not privileged": sample size and method [___]
Reviewer of the sample (name and experience) [___]
Privileged documents found in sample (count) [___]
Observed miss rate and pre-set action threshold [] / []
Action taken on misses (terms added, re-review of what) [___]
Conflict check: privilege calls inconsistent within thread, family, or duplicate [___]
Final export test: privilege screen against outgoing load file hits: [___]
Final export test: withheld-document hash list against outgoing load file hits: [___]
Hits resolved Y / N
Log entries prepared for this volume, with service date [___]
Approved for release (lawyer's name and date) [___]

Drafting notes

  • Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) calls sampling "[t]he only prudent way to test the reliability of the keyword search." Mt. Hawley found waiver after a substantial process that lacked it, and called the failure imprudent. Also see In re Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. 2007).
  • Sample size. Sample size depends on prevalence and desired confidence, and at a very low prevalence a small sample may find nothing even when misses exist. Get help from your vendor's consultant and record the reasoning. Don't invent a number after the fact.
  • The two export tests are the cheapest protection here. They respond to failures in Mt. Hawley (incomplete index) and irth Solutions (wrong folder).
  • Rhoads counted it against the producing party that its only test was to run the same search again. A repeat run shows consistency, not accuracy.
  • Keep the worksheets in the file. In a Rule 502(b) fight they become Exhibit A to Tool 12. Treat them as work product, but assume you may disclose the process facts.
  • Rule 26(b)(5)(A) requires the log; Rhoads ordered production of late-logged documents. Pair this with Preparing a Privilege Log: A Practical Checklist.

Tool 6: Generative AI and TAR addendum

Purpose: Govern any machine-assisted privilege screening. Owner: Discovery lead and whoever signs vendor paper. Timing: Before any client data enters the tool.

A. Approval. No document enters an AI or TAR tool unless the tool is listed in this addendum
   and [name] has approved its contract terms.

B. Contract terms required. The provider (1) may not store or use inputs to train or improve
   any model; (2) may not disclose inputs to third parties except as essential to delivering
   the service, under obligations no less protective than our protective order; (3) must allow
   deletion on request; and (4) has provided written documentation of the above, which we retain.

C. Role of the tool. The tool [ranks / suggests / summarizes]. A lawyer decides. No document is
   released as "not privileged" based only on a model score unless it falls in a population
   validated under section D, and this has been approved by [name].

D. Validation on this matter's data. Before reliance, a senior lawyer codes a random control
   set of [___] documents, blind to the tool's output. Record recall and precision for
   privilege. Repeat when [the model version, the prompt, or the data source] changes.

E. Records. Keep tool name, model and version, prompts or configurations, thresholds, dates,
   control-set results, and exceptions.

F. Consistency. Thread and family decisions are reconciled by a human. Re-run a random subset
   to test whether identical inputs produce consistent outputs.

G. Hallucination control. Model explanations are not evidence. A reviewer must confirm from the
   document itself any stated reason for a privilege call.

H. Receiving-side use. Productions from other parties enter this tool only if permitted by
   the protective order. On a clawback, all derived data must be purged per Tool 9.

I. Disclosure. [State here whether the ESI protocol requires disclosure of tool use to the other side.]

Drafting notes

  • The explanatory note to Rule 502 says a party using "advanced analytical software applications and linguistic tools" may be found to have taken reasonable steps "[d]epending on the circumstances." Rhoads credited buying software but still weighed the failure to test it. Tools don't earn credit on their own.
  • Section B is modeled on the provision imposed in Morgan v. V2X, Inc., No. 25-cv-01991 (D. Colo. Mar. 30, 2026). That order addressed confidential information under a protective order, not privilege review as such, and the court recognized that its terms would bar most mainstream low-cost tools. Morgan also discusses United States v. Heppner, 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026), and Warner v. Gilbarco, Inc., 2026 WL 373043 (E.D. Mich. Feb. 10, 2026), on AI use and work product. This area is moving. Recheck it before you rely on these terms.
  • We found no reported decision ruling on an LLM-based privilege review under Rule 502(b)(2). Section D reflects how courts approach search generally: see United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) on the complexity of search, and Victor Stanley.
  • Section I: courts have often pushed for openness about TAR. See Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015) and Edgar, which adopted a "cooperative and transparent" TAR provision. Privilege screening is a different use, and you may reasonably describe less, but check your ESI protocol.
  • ABA Formal Opinion 512 (July 29, 2024) ties this to Model Rules 1.1, 1.4, 1.6, and 5.3. The firm's broader policy might come from AI Confidentiality Toolkit: Acceptable Use Policies, Vendor Term Reviews, and Incident Playbooks.

Tool 7: Producing-side first-day action sheet

Purpose: Run the first 24 hours without forgetting something. Owner: One named lawyer. Timing: Start when the problem is discovered.

# Action Done (time, initials)
1 Open timed chronology
2 Pull the order, ESI protocol, stipulations; note deadlines
3 Written freeze to vendor and staff: nothing leaves without lawyer sign-off
4 Vendor isolates production set and preserves logs
5 Confirm the document is privileged and on what basis
6 Notify lead counsel
7 Notify client contact (consider ABA Formal Op. 481); limit circulation
8 Consider firm GC and carrier notice
9 Call opposing counsel, then send Tool 8
10 Sweep: hash, near-dup, thread, family, name in body, log vs. production
11 Supplemental notices for each new hit
12 Root cause write-up by someone who understands the system
13 Updated log; replacement media after a lawyer-run export test
14 Calendar: response date, meet and confer, motion date

Drafting notes

Tool 8: Clawback notice

Purpose: Trigger Rule 26(b)(5)(B) and create the record for Rule 502(b)(3). Owner: Discovery lead. Timing: Same day as discovery.

[Date]
BY EMAIL
[Opposing counsel and all parties who received the production]

Re: [Case], Notice under Fed. R. Civ. P. 26(b)(5)(B) [and Paragraph [__] of the [Order]]

Counsel:

[Client] gives notice that the documents listed in Attachment A are subject to the
[attorney-client privilege and/or work-product protection]. They were included in the
production [volume, date] by mistake. We learned of this on [date].

Attachment A identifies each document by Bates number and states the basis for the claim. It
does not waive any privilege or protection.

Under Rule 26(b)(5)(B) [and Paragraph [__]], please:
1. promptly return, sequester, or destroy these documents and all copies;
2. stop any use or disclosure of the information, including in depositions and filings,
   until this claim is resolved;
3. take reasonable steps to retrieve the documents and information from anyone to whom you
   have provided them, including experts, consultants, co-counsel, clients, and vendors;
4. remove from any review platform or analytics or AI tool the documents and data derived
   from them, including extracted text, summaries, and index entries; and
5. confirm in writing by [date] that these steps have been taken.

[Under Federal Rule of Evidence 502 and Paragraph [__], this production is not a waiver in this
or any other proceeding.] We will preserve the documents until the claim is resolved. We will
provide [replacement media / redacted versions] and an updated privilege log by [date].

If you dispute this claim, please tell me by [date] so that we can confer. If there is a dispute,
please keep the documents sequestered and do not file them publicly; Rule 26(b)(5)(B) provides for
presentation to the Court under seal.

Please let me know right away if the documents have been used or provided to anyone.

[Name]

ATTACHMENT A
Bates | Date | Author | Recipients | General subject (no content) | Claim | Basis

Drafting notes

  • The rule requires notice "of the claim and the basis for it." The 2006 committee note says writing is expected unless circumstances preclude it and that notice should be "as specific as possible."
  • "By mistake" is deliberate. Under a strong order you need not fight about inadvertence. Under Rule 502(b), add "inadvertently." Coburn and Datel say that the question is simply whether it was a mistake.
  • Send it to everyone who received the production, since the rule refers to "any party that received the information."
  • A letter alone may not satisfy Rule 502(b)(3). Williams held notice under the rule insufficient on its facts.
  • Under a stipulation, follow its text word for word, and calendar any fixed period. Mt. Hawley parsed each paragraph.

Tool 9: Sequestration response and contest letter

Purpose: Show compliance while preserving the challenge. Owner: Receiving side's discovery lead. Timing: Before the date in the notice; promptly in any event.

Re: [Case], your notice dated [date]

Counsel:

We received your notice regarding [Bates]. Without conceding that any privilege or protection
applies or has been preserved, we have taken these steps as of [date]:

1. Sequestered all copies known to us [in a locked file under the control of [name]]; no one is
   reviewing them.
2. Stopped use of the information.
3. Asked the following recipients to return or destroy copies: [names]; [status].
4. Instructed our vendor to remove the documents and derived data from the review platform and
   tools. The vendor confirmed completion on [date].
5. [Segregated notes or work product that reflect the documents.]

[OPTION A: We do not contest the claim, and we have destroyed the copies.]

[OPTION B: We contest the claim on the following grounds, stated without reference to the
documents' contents: [e.g., your log does not identify a lawyer; the document was previously
withdrawn from your log on [date]; the order does not apply]. Please provide by [date]:
(a) the basis for the claim beyond your log; (b) [under Rule 502(b)] a description of the
review and when you learned of the production. We propose a call on [date]. If unresolved, we
will present the documents to the Court under seal under Rule 26(b)(5)(B).]

[Name]

Vendor instruction to pair with it

Please, for documents [Bates], by [time]:
(a) remove from all reviewer access, batches, saved searches, and exports;
(b) remove extracted text from the search index;
(c) exclude from analytics, clusters, threading views, and TAR training or scoring;
(d) remove any AI-generated summaries, embeddings, prompts, or chat history containing them;
(e) keep one locked copy under [name]'s sole control [only if contesting]; and
(f) confirm in writing what was done and anything that could not be done, and why.

Drafting notes

Tool 10: Quarantine stipulation

Purpose: Buy time for both sides without any delay argument. Owner: Both sides' discovery leads. Timing: Within days of a dispute.

The parties stipulate, subject to the Court's approval if required:

1. [Receiving Party] will sequester the documents listed in Attachment A and will not review, use,
   or disclose them pending resolution of [Producing Party]'s claim.
2. [Producing Party] will preserve the documents.
3. [Receiving Party] will not contend that [Producing Party]'s time to seek relief through [date]
   reflects delay under Federal Rule of Evidence 502(b)(3) or otherwise. [Producing Party] will not
   contend that [Receiving Party]'s time to respond through [date] reflects a failure to act promptly.
4. Either party may bring the dispute to the Court, with the documents to be submitted under seal or
   in camera, by [date].
5. This stipulation does not concede the validity of any claim or challenge.

Drafting note

This is the Coburn arrangement. There, the receiving side agreed to "quarantine" the documents and agreed not to raise delay in filing as evidence against the privilege, and the court held that the time taken to file was not unreasonable.

Tool 11: Deposition scripts

Purpose: Say the right words on the record. Owner: Whoever is defending or taking. Timing: Print and keep in the deposition binder.

Defending, clear case:

Objection. Exhibit [] is privileged and was produced by mistake. [Client] asserts the attorney-client privilege and work-product protection, and invokes Rule 26(b)(5)(B) and paragraph [] of the [Order]. I ask that you stop questioning on this document and give me all copies. I instruct the witness not to answer questions about its contents, to preserve the privilege. A written notice will follow today.

Defending, not sure yet:

I object on privilege grounds to the use of Exhibit [__]. I need a moment to determine whether it was mistakenly produced. Please do not ask questions about it until I have done that. Let's go off the record for [five] minutes.

Defending, after testimony has already occurred:

I now assert privilege over Exhibit [] and the testimony at pages [] about it. I learned of the issue just now. Please stop. I'll follow up in writing and ask that those pages be sequestered.

Taking, on an objection you dispute:

For the record, this document was produced to us on [date], Bates [__]. I don't agree that it is privileged or that protection was preserved. In light of the claim, I'll move on and reserve the right to recall the witness after the Court rules.

To the reporter:

Please separately seal Exhibit [] and transcript pages [] and do not send them to anyone, pending further instruction from counsel or the Court.

Drafting notes

Tool 12: Rule 502(b) declaration outline

Purpose: Carry the burden on prevention and rectification. Owner: Declarant with personal knowledge, drafted by discovery counsel. Timing: With the motion or response; begin the week of discovery.

DECLARATION OF [NAME]

I. Who I am. Role; years of experience; involvement in this review; basis for personal knowledge.

II. The case and the scale.
   - Requests served [date]; production deadlines [dates]; any accelerated schedule.
   - Custodians [__]; data collected [__]; documents reviewed [__]; produced [__].

III. Prevention (Rule 502(b)(2)).
   - Protocol: date, author, attached [redact as needed].
   - People: reviewers, experience, training, supervision.
   - Screen: terms and name list; why chosen; who chose them; how they were tested.
   - Tools: software and version; validation.
   - Layers: first-level, QC, privilege team, each with dates.
   - Sampling: size, method, results, action taken [Tool 5].
   - Final export test.

IV. What went wrong.
   - What the document was (in log terms only) and how it got through.
   - Root cause as known; what is not known.
   - Number of mistaken documents versus total production.

V. Rectification (Rule 502(b)(3)).
   - When and how we learned; from whom.
   - Each step, with times: notice, sweep, supplemental notices, log, replacement.
   - Status of return or sequestration.

VI. Exhibits. Protocol, QC worksheets, notices, replies.

Second declarant, on privilege: the lawyer or client who can establish that the communication was confidential and for legal advice, without revealing its substance beyond what's necessary, with in camera submission of the document.

Drafting notes

  • Williams lists the facts expected: when review occurred, time allocated, reviewer experience, supervision, rounds, segregation, and volumes.
  • Victor Stanley lists what was missing: keywords, rationale, qualifications, proximity operators, and analysis of results. It also treated a vague or incomplete affidavit as a failure of the burden.
  • Coburn is the model outcome: lead counsel described the protocol, and the reviewers' experience. Note that it held that an imperfect result doesn't show an unreasonable process: "the document review can not be deemed unreasonable solely because a document slipped through."
  • irth Solutions noted that the people who did the work did not testify. Don't send only the partner.
  • Be careful with the numbers. Rhoads saw that a percentage may be low while the absolute count is large. Give both.
  • Fall back on time and burden only if you asked the court for relief, per Victor Stanley.
  • Don't reveal content, and describe process only. Consider whether disclosing the protocol raises work-product concerns; In re Kellogg Brown & Root, Inc., 796 F.3d 137 (D.C. Cir. 2015) discusses at-issue waiver and how narrowly to read it.

Tool 13: Opposition to a clawback (outline)

Purpose: Contest a claim the right way. Owner: Receiving side's discovery lead. Timing: Under the order's schedule or promptly after impasse. File under seal or lodge in camera.

I. Introduction. [Receiving Party] complied with Rule 26(b)(5)(B) and now presents the dispute.

II. Record of compliance. Date of notice; steps taken [Tool 9]; no use since.

III. Not privileged [if applicable; argue from log and metadata].
    - Burden on the claimant. Business v. legal purpose; third parties; missing elements.

IV. The order does not control [if applicable].
    - Text: "inadvertent" only; silent on care; no Rule 502(d) reference.
    - Rule 502(e): a private agreement; cursory agreements don't displace Rule 502(b) (Irth).

V. Rule 502(b) is not satisfied.
    A. Not inadvertent: deliberate production or withdrawal (Amtrak).
    B. No reasonable prevention: no sampling (Victor Stanley; Mt. Hawley); unexplained review
       (Williams); address-line search (Rhoads); self-evident documents (Irth).
    C. No prompt rectification: facts on delay; failure to act on obvious indications (note;
       Mt. Hawley); repetition (Irth).
    D. Fairness: reliance before notice (Statement of Congressional Intent, as quoted in Mt. Hawley).

VI. Waiver by later conduct: failure to object to use at deposition (Amtrak).

VII. Exception [only if supported]: crime-fraud; request for in camera review under Zolin.

VIII. [For work product only] Substantial need under Rule 26(b)(3)(A)(ii).

IX. Relief. Order that protection was waived as to [Bates] or does not apply; leave to use.

Drafting notes

Tool 14: Decision matrix

Purpose: Choose the path quickly. Owner: Lead counsel. Timing: When the problem arises.

Situation Producing side Receiving side
Strong Rule 502(d) order, obvious privilege Notice; follow order; expect return Comply; rarely worth contesting
Strong order, privilege debatable Notice; be ready to prove privilege Sequester; challenge on privilege only
Weak order or email agreement Notice; build Rule 502(b) record at once Sequester; argue order doesn't displace Rule 502(b)
No order, careful documented review Notice; declaration; good odds on Coburn and Datel Consider whether to contest
No order, no testing Notice; expect a fight; hard under Victor Stanley and Mt. Hawley Contest under seal
Used at deposition, no objection yet Object now; written notice today Stop on a clear claim, reserve
Withdrawn claim after review Likely lost (Amtrak) Rely on deliberate withdrawal
Same document produced twice Very hard (Irth) Sequester; raise repetition
Disclosure by rogue employee Fit under Rule 502(b) is poor; argue no authorization (GWU) Sequester after notice; court may use inherent power
Agency or IRS summons Ask for written agreement or order; no selective waiver (In re Pacific Pictures Corp., 679 F.3d 1121 (9th Cir. 2012)); may be refused (Captive) Agency's own procedures apply

These forms are general starting points, not advice for any particular matter, and each should be adapted and checked by a lawyer familiar with your court and case.

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