By: Elizabeth Cherkis and Billy Minshall 

In a recent product liability case, a Texas district judge denied a motion brought by the Defendants to claw back a document based on responsiveness.  The judge ruled the document in question was not subject to clawback pursuant to Federal Rule of Evidence 502 or the provision for inadvertent disclosures in the Scheduling Order.  With so much focus on reducing the risk of inadvertent disclosure of privileged information, this case highlights the importance of also identifying and protecting sensitive or confidential non-responsive information.

The Defendants in Adams v. Medtronic, Inc., No. 4:19-cv-870-SDJ-KPJ (E.D. Tex. Jan. 23, 2024), emailed the Court requesting guidance on a discovery dispute involving their attempt to claw back a document from production.  The document in question was an Establishment Inspection Report (EIR), a summary of findings following an FDA inspection of one of the Defendants’ facilities.  In a joint letter from the parties regarding the issue, the Defendants put forth two arguments in support of their position:

• Responsiveness: The Defendants argued their request should be granted because the document in question was not responsive to the Plaintiff’s discovery requests and not relevant to the claims of the case.  The Court disagreed, holding that the Defendants failed to cite any authority to support this argument.  Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of Evidence 502 apply to the inadvertent disclosure of a document covered by the attorney-client or work-product privilege only.  While the parties had a separate agreement regarding inadvertent disclosure, the Court noted the scope was similarly limited to privileged documents.
  Subsequently, the Court analyzed the responsiveness of the document.  Despite the Defendants’ argument that the document concerned different products and a different facility than those at issue in this case, the Court, citing FRCP 26(b)(1), held the document was relevant to the Plaintiff’s claim that the Defendants failed to adequately investigate complaints, regardless of product. 
• Privilege: The Defendants also argued the document was protected by the work product doctrine, having been “inadvertently produced based on counsel’s fact gathering process during the course of discovery.”  The Court again disagreed, holding that the document was prepared by a third party and not in anticipation of litigation.  In addition, the cases the Defendants cited involved documents that were gathered in preparation for a deposition or litigation.  The document at issue was produced as a standalone document without any indicia of privilege. 

Notwithstanding its determination that the document in question was relevant, the Court’s decision regarding the Defendants’ first argument aligns with the prevailing view that absent an agreement between the parties allowing for the clawback of non-responsive or irrelevant documents, responsiveness and relevance are improper bases upon which a document can be clawed back from production.

With limited clawback options, it is beneficial to leverage opportunities throughout the discovery process to ensure sensitive or confidential non-responsive information and documents receive the appropriate level of protection or are not produced at all.  A few things to consider:

• Understand what constitutes client critical information and documents to inform what should (and should not) be included in the scope of protective orders and clawback agreements
• Create document collection plans tailored to relevant data sources
• Segregate any non-relevant data sources that are collected from processing
• Use early case assessment tools and analytics to identify and exclude non-responsive folders and document populations from review
• Draft clear document review guidance and deploy workflows and quality control checks to ensure consistent designations for responsiveness, confidentiality, and redaction
• Validate document populations prior to production to identify non-responsive information or documents that should be protected or withheld

As noted, absent a claim of privilege, it is unlikely a document can be clawed back without a specific agreement allowing it.  Taking steps to identify and manage non-responsive documents is encouraged to reduce the chance they are collected, reviewed, and produced, thereby protecting irrelevant information from disclosure.

For additional information on this topic, please contact Vik Masson at vmasson@redgravellp.com.