The court stated that while the primary purpose of a recovery agreement is to protect inside information provided by the attorney and clients and work products from use by a party reserving the product, a recovery agreement may also contain provisions relating to the protection of confidential documents. Some disputes involve sensitive business or personal information that may warrant a designation of “confidential”,”strictly confidential”, or “solely in the eyes of lawyers.” If this is an issue in your dispute, recovery agreements can be used to provide a systematic approach to the return (or destruction) of this confidential information. According to the first approach, “the courts have held that a recovery agreement (regardless of size) requires the return of accidentally created documents, regardless of the diligence of the producing party.” This approach has been used by the courts in Kansas, New Jersey, and Washington, D.C. The court, however, rejected this approach and found it “inconsistent with the basis of Rule 502” and “a waiver of the Tribunal`s role in interpreting the parties` agreement in this case.” Even with a recovery agreement, it is still important to develop and implement comprehensive and reasonable research and verification protocols for ESI. Such protocols ensure that privileged documents are properly recognized and labelled, which indeed shows that appropriate measures have been taken to avoid accidental production and protect the interests of your customer. . . .

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