Massachusetts Rules of Civil Procedure Amended to Provide “Clawback” of Privileged Materials

The Massachusetts Rules of Civil Procedure govern almost all civil cases in Massachusetts state courts. Next year, new amendments to the Rules will take effect, significantly impacting the discovery process for many state lawsuits. Most of the new amendments govern the exchange of electronically stored information (e.g., email messages), and have received much attention recently from lawyers and legal publications alike. Another aspect of the amendments, however, has received less attention to date: the formalization of procedures providing for the return of privileged material that has been inadvertently disclosed.

The volume of information exchanged by parties to a lawsuit during the discovery process has increased dramatically in recent years, as has the risk of inadvertently disclosing material that is protected by the attorney-client privilege or other privileges and protections. Effective January 1, 2014, amended Massachusetts Rule of Civil Procedure 26(b)(5) will provide an explicit and comprehensive mechanism allowing parties to retrieve, or “claw back,” privileged materials that have been mistakenly produced in litigation.

The amended Rule 26(b)(5) provides that if a party discovers the inadvertent disclosure of privileged materials, such as an attorney-client email, the party may inform other parties who received the material that it was inadvertently disclosed, and that a claim of privilege is being made over that material. The amended rule requires parties receiving such a notification to: (i) “promptly” return, sequester, or destroy the specified materials and all copies of it; (ii) refrain from using or disclosing the specified materials to others; and, (iii) take “reasonable steps” to retrieve the specified materials, if it has already been disclosed to others.

The amended Rule 26(b)(5) allows parties to challenge a claim of privilege over inadvertently produced materials, and directs courts resolving such a challenge to consider three factors: (i) whether the disclosure was inadvertent; (ii) whether the party making the claim took “reasonable steps to prevent disclosure” in the first place; and, (iii) whether the party making the claim “promptly took reasonable steps” to rectify the error.

Given the large volume of documents being exchanged by parties during the discovery process in modern-day litigation and the risk of inadvertent disclosure of privilege materials, litigants must be sure to take reasonable steps to prevent disclosure of privileged materials at the outset (such as by conducting a thorough privilege review before sending materials to an adversary), and to act promptly whenever inadvertent disclosure is discovered (such as by immediately issuing a clawback letter). Though the risk of inadvertently disclosing privileged material may be ever-present, for careful litigants and their counsel, the clawback procedures in amended Rule 26(b)(5), ultimately requiring the prompt return or destruction of inadvertently produced privileged materials, will provide a well-deserved safe harbor.


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