Clawback agreement
A clawback agreement is the parties' agreement that producing a privileged document by mistake does not waive the privilege, and that the receiving party must return, sequester or destroy the document on notice. Entered by the court as an order under Federal Rule of Evidence 502(d), the non-waiver also binds every other federal and state proceeding.
Also called: clawback provision · 502(d) order · non-waiver agreement · snap-back provision · clawback clause
Updated October 2, 2026
How does a clawback agreement work?
Privilege review is done by people, at speed, over large volumes. Some privileged documents get through. Without a non-waiver agreement, that production can be argued to waive privilege over the document and, in the worst case, over the whole subject matter.
Rule 502 addresses this in two ways. Rule 502(b) provides a default: an inadvertent disclosure does not operate as a waiver if “(1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).” That is a test, and it is litigated after the fact.
Rule 502(d) replaces the test with an order. If the court has entered one, the parties argue about nothing: the disclosure is not a waiver, in this case or any other. That is why 502(d) orders are standard in the ESI protocol, and why Rule 26(f)(3)(D) directs the parties to discuss at the conference “whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502.”
The retrieval mechanics come from Rule 26(b)(5)(B): after notice of the claim, the receiving party “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; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.”
What does a clawback agreement look like in practice?
A clawback clause as it typically appears in a protocol:
Pursuant to Federal Rule of Evidence 502(d), the production of any document subject to the attorney-client privilege or work-product protection shall not constitute a waiver of that privilege or protection in this or any other federal or state proceeding. A producing party may notify the receiving party in writing of an inadvertently produced document, and the receiving party shall thereafter comply with Federal Rule of Civil Procedure 26(b)(5)(B). The receiving party may challenge the claim by motion, but shall not use the document for any purpose pending resolution.
Note what is missing: any carve-out for how the document came to be produced. A clause that preserves non-waiver only where the producing party took reasonable precautions has restated Rule 502(b) and given up the point of 502(d). (Draft language, not legal advice, verify local rules and the practices of your court.)
How does a clawback agreement show up on an eDiscovery invoice?
A clawback has no line of its own; it shows up as the cost of the events it governs. Recalling a production and reissuing it means a second export and production charge, a second format conversion run if images are reissued, and project management hours to rebuild the volume. The Fee Field Guide records project-management time as billed hourly, discretionary and rarely capped.
The other side of the ledger is the review time a well-drafted 502(d) order does not save you. Privilege review remains the expensive part of review, and the agreement does not reduce it; it caps the consequence of a miss.
Ask whether re-productions issued to correct a defect are charged again, and whether rush pricing applies when a clawback has to be resolved before a deadline.
Sources
- Fed. R. Evid. 502(b) and 502(d), quoted.
- Fed. R. Civ. P. 26(b)(5)(B), quoted.
- Fed. R. Civ. P. 26(f)(3)(D).
- Advisory Committee Notes to Fed. R. Evid. 502 (2008).
- Fee ranges: the Fee Field Guide dataset.
Related terms
ESI protocol · Privilege log · Meet and confer · Document production · Redaction
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Common questions
What is a Rule 502(d) order?
A court order under Federal Rule of Evidence 502(d), which provides that "a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, in which event the disclosure is also not a waiver in any other federal or state proceeding." The clause that matters is the second one: a private agreement between the parties binds only the parties, while a 502(d) order carries the non-waiver into other cases and other courts.
Does a clawback agreement mean you can skip privilege review?
No, and treating it that way is how parties lose the protection they thought they had. A 502(d) order does not require the reasonable-steps showing that Rule 502(b) does, but courts have not read it as license to produce without looking. The agreement is insurance against the document that gets through a careful review, not a substitute for the review.
What is the difference between a clawback agreement and a quick-peek?
A clawback covers documents produced by mistake after a privilege review. A quick-peek is a deliberate arrangement in which the producing party lets the requesting party inspect a set without reviewing it first, and the requesting party then designates what it wants produced, with privilege preserved on the rest. Both rely on 502(d) for protection; a quick-peek is far more aggressive and much less common.