Clawback Motion Denied in Part, Granted in Part

Judge Robinson issued an order today denying a motion for the return or destruction of a privileged document where the document was “used” in a deposition and the protective order provided that the producing party has 3 weeks from the date of disclosure at the deposition to provide notice of inadvertant production. , C.A. No. 05-356 (D. Del. Mar. 1, 2007) (Robinson, C.J.). The movants argued that although they waited until after the three weeks set forth in the protective order to attempt to claw back the document, the delay was excused because the document was not really “used” at the deposition as the protective order requires. The Court held that it does not matter whether the “allegedly privileged portions” of the document are used at the deposition, so long as the document itself it used because notice is the purpose of this type of a provision in a protective order. Id. at 2.

The Court granted the motion, however, as it pertained to a draft licensing agreement written by counsel. Judge Robinson states: “I have consistently held that draft licensing agreements written by counsel are not subject to disclosure.” Id.

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