An interesting dispute unfolding between business competitors highlights the practical and legal implications of clawback agreements. In Arconic, Inc. v. Novelis, Inc., et al, Civil Action 17-1434 (W.D. Pa. Feb. 25, 2019), one party produced privileged documents and requested their return relying on a clawback agreement entered in the case. The other party objected to clawback arguing that the documents were no longer privileged because there was limited effort to prevent disclosure of…

Sampling as a means of quality control became widely used in World War II. The U.S. military used statistical sampling to test bullets before shipping. Obviously, it would be impracticable to test every bullet before shipping, so samples were taken and test to ensure quality control. While quality control in legal projects is generally not as dangerous as testing bullets (although legal matters are often war), the benefits of sampling apply: It may be impracticable…

Every year about this time, we take a look at our most read articles to see what piqued people’s interest. Come to find out, this year, people are very interested in subpoenas for documents and electronically stored information (ESI). Specifically, people want to know: Why you cannot subpoena Google for your archenemy’s email Who pays for responding to document subpoenas What happens when someone ignores a subpoena for email If you really do have to…

If there is any business well suited for knowledge management (or KM for short), it is the law. As Vishal Agnihotri, Chief Knowledge Officer for Hinshaw and Culbertson, explains in the latest episode of the Technically Legal Podcast, knowledge management is “the ability to identify critical knowledge within an organization and then leveraging it to serve up at the right time for the right purpose.” Step 1: Gather and Organize “Critical Knowledge” For…

Your client sued a competitor who is also the new employer of your client’s former employee. You suspect before the employee left, he sent your client’s proprietary information to his personal Gmail account. In discovery you request the Gmail messages, but none are produced. Undeterred, and, observing your ethical duty of zealous representation, you fire off a subpoena to Google for copies of the messages. Bad news. Google ain’t gonna give ’em to you either. The…

Salesforce.com develops customer relationship management software that is, among other things, used to track sales activities. Salesforce.com products are offered as software as a service or, SaaS.  This means users do not install the software locally on their own computers, but access it via internet connection on salesforce.com’s servers.  As detailed in the court decisions that follow, discovery of data on SaaS servers presents unique challenges for both plaintiffs and defendants in civil litigation. For plaintiffs’ lawyers the cases teach that preservation of relevant SaaS…

We here at Percipient are fans of clawback agreements. Clawback agreements are authorized by state and federal evidence rules, such as Federal Rule of Evidence 502, and permit parties to “claw back” attorney work product or attorney-client privileged information that is produced during discovery in litigation. Under Rule 502(b), if a party took reasonable steps to prevent and rectify the disclosure of privileged information, inadvertent production of that information does not waive its privileged…