[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

In Medal v. Amazon.Com Services, LLC, 2026 WL 1179763, at *1 (W.D. Wash. Apr. 30, 2026), the parties submitted a dispute over a protective order and ESI Protocol.

Three issues addressed by the court were: 1) whether a Fed.R.Evid. 502(d) order could be entered without consent; 2) whether a “clawback” order could be entered without consent; and, 3) whether a party had to produce documents known to be responsive, but that did not “hit” on a search term.

The Medal court held that a Rule 502(d) and clawback order could not be entered without agreement or consent. And, it held that a party did not have to produce known responsive documents that did not “hit” on a search term.

I respectfully disagree.

THE PARTIES TRIED AND FAILED TO REACH AGREEMENT

In Medal, Defendant requested a privilege non-waiver order and a clawback agreement. Plaintiffs refused. “[T]he Court agrees with Plaintiffs that, for the reasons explained above…, a litigant cannot be forced into a Rule 502(d) order and Plaintiffs have not agreed to one here.” Id. at *5. The court explained:

The parties say they exchanged six proposed drafts of the [Protective Order] and ESI Protocol without success from January 2025 to the present.... As for the PO, the parties disagree solely on whether to include a clawback provision under Federal Rule of Evidence 502(d) (a “502(d) provision” or “clawback provision”).

Id. (emphasis added). 

Plaintiffs did not agree to a Rule 502(d) provision. Id. They provided reasons for that refusal. Id. at *2. However, those reasons are not provided in the decision.

THE MEDAL COURT’S FED.R.EVID. 502 ANALYSIS

The Medal court noted its broad latitude over discovery disputes. The court quoted Rule 502(b) and added:

But a “federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court” under Federal Rule of Evidence 502(d); and further, parties may agree to a court’s entry of such an order. See generally Fed. R. Evid. 502(b), (d), (e).

Id. at *2. 

The court wrote that Rule 502(b) is the default rule and parties may contract around it under Rules 502(d) and (e). It then wrote:

Here, Plaintiffs have not agreed to any clawback provision, and Defendant cites no case in which a court imposed such a provision on a litigant that did not agree to it. Rather, as discussed above, Rule 502(b) applies as a default in the event there is no agreement otherwise.

Id. at *2 (citation and quotations omitted).

The Medal court noted that the Local Rule “encouraged” use of its form Protective Order, but did not mandate it. Id.

MY VIEW ON THE FED.R.EVID. 502 ANALYSIS

I take issue on two points: First, a procedural clawback agreement does not require any agreement or order. Second, I suggest that a court may enter a Fed.R.Evid. 502(d) order without consent of the parties.

“Clawback” v. Fed.R.Evid. 502(d) Order

There is a significant difference between a Fed.R.Civ.P 26(b)(5)(B) clawback and a Fed.R.Evid. 502(d) order. See M. Berman, et al., eds. “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 369.

In my opinion, no agreement is required for a procedural clawback. The Rule states:

(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Nothing in the text of the Rule requires any agreement among the parties. Nor is an order required by the text.

However, the Hon. Paul W. Grimm (ret.) pointed out the hole in the “clawback” donut. The clawback right is created by a procedural rule, Fed.R.Civ.P. 26(b)(5)(B). A procedural rule cannot alter the substantive law of privilege and therefore: “Absent a definitive ruling on the waiver issue, no prudent party would agree to follow the procedures recommended in the proposed [clawback] rule.” Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228, 234 (D. Md. 2005)(Grimm, J.).

As a result, Fed.R.Evid. 502 subsequently became law through an Act of Congress. P.L. 110-322 (Sep. 19, 2008). It modified the substantive law of privilege. The legislative history is discussed in “Electronically Stored Information in Maryland Courts” at 398-99.

In my view, Rule 502(d) does not require consent of the parties as the predicate of a court order. The Rule states that: “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court–in which event the disclosure is also not a waiver in any other federal or state proceeding.”

“The fact that the parties disagree regarding the propriety and scope of the proposed Rule 502(d) order does not prevent me from entering the order. To the contrary, it is well-settled that a court may enter a Rule 502(d) order on its own initiative and without the consent of both parties.” Lubrizol Corp. v. Int’l Bus. Machines Corp., 2024 WL 941686, at *3 (N.D. Ohio Feb. 8, 2024), stay granted, 2024 WL 2372390 (N.D. Oh. Apr. 19, 2024).

“Significantly, the Advisory Committee also explains that entry of an order containing a clawback provision is not dependant [sic] on the agreement of the parties.” Rajala v. McGuire Woods, LLP, 2010 WL 2949582, at *4 (D. Kan. July 22, 2010). In Rajala, plaintiff opposed the Rule 502(d) order.

Preliminarily, the Rajala court considered whether it had the authority to issue an order with a claw-back provision, without party agreement. The court concluded that, pursuant to Federal Rule of Civil Procedure 26(c)(1), it did have such authority, reasoning that Rule 26(c)(1)(B) provides that “[a] [c]ourt may, ‘for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,’ . . . . ‘specifying terms, including time and place, for the disclosure or discovery.”’ The court also relied on the Advisory Committee’s Note to Federal Rule of Evidence 502(d), which provides that, “[u]nder the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court’s order.” The court further observed that the 2006 Advisory Committee’s Note to Federal Rule of Civil Procedure 26(f) specifically contemplates claw-back agreements “as a way to reduce discovery costs and minimize the risk of privilege waiver,” and that Rule 502 “validates . . . clawback provisions or agreements” that “‘provide for the return of [privileged or protected] documents without waiver irrespective of the care taken by the disclosing party . . . .”’ Thus, the court concluded, “a court may fashion an order, upon a party’s motion or its own motion, to limit the effect of waiver when a party inadvertently discloses attorney-client privileged information or work product materials.”…. Taken together, Federal Rule of Evidence 502, Federal Rules of Civil Procedure 16(b)(3) and (4), and 26(b)(2)(C), and the Statement of Congressional Intent provide sufficient authority for a court, on its own, to issue an order limiting the effect on waiver of a disclosure of privilege or protected material.

The Hon. Paul W. Grimm (ret.), Lisa Yurwit Bergstrom & Matthew P. Kraeuter, “Federal Rule of Evidence 502: Has It Lived Up to Its Potential?,” XVII Rich. J.L. & Tech. 8 (2011), http:// jolt.richmond.edu/v17i3/article8.pdf (emphasis added).

There is no mention of an “agreement” in the text of Subsection (d). By way of comparison, Rule 502(e) expressly refers to the effectiveness of an “agreement,” a term not included in Rule 502(d).

The legislative history of Rule 502 is not, in my opinion, consistent with the holding of Medal. The “Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence” states in part:

This subdivision is designed to enable a court to enter an order, whether on motion of one or more partiesor on its own motion, that will allow the parties to conduct and respond to discovery expeditiously, without the need for exhaustive pre-production privilege reviews, while still preserving each party’s right to assert the privilege to preclude use in litigation of information disclosed in such discovery…. Moreover, whether the order is entered on motion of one or more parties, or on the court’s own motion, the court retains its authority to include the conditions it deems appropriate In the circumstances. [emphasis added].

To the same effect, the Advisory Committee Note (Nov. 28, 2007), to Subdivision (d) states: “Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court’s order.”

DO SEARCH TERM “HITS” DEFINE THE DUTY TO PRODUCE?

The Medal court denied Plaintiffs’ request for a provision that was not in the court’s model ESI Protocol. The requested clause would have expressly stated “that any documents yielded by the custodian and search-term provisions of the ESI Protocol are supplemental to a party’s overall discovery obligations—that is, under Federal Rules of Civil Procedure 26 and 34, a party must conduct reasonable searches and produce all non-privileged ESI in its possession, custody, or control that is relevant and proportional, regardless of whether such ESI is identified by particular keyword searches or custodians contemplated by the ESI Protocol.” Id. at *3.

In my words, Plaintiffs were suggesting that, if Defendant knew that “Document A” was responsive to a Request for Production of Documents, but “Document A” did not contain any search term, Defendant still must produce it. The Medal court rejected that suggestion, writing:

Defendant responds that Plaintiffs “offer no compelling reasons to deviate from” the model ESI Protocol…. Given that Plaintiffs cite no authority and do not otherwise justify their request except with reference to (also speculative) “future entanglements,” the Court denies Plaintiff’s request.

Id. at *3.

In my view, Plaintiffs dropped the ball and, as a result, the court erred. “Judges are not like pigs, hunting for truffles buried in the record.” (Mar. 31, 2025). “It is not the job of the Court to follow the breadcrumbs dropped by counsel to find the correct supporting documents for Plaintiffs’ arguments….” Id. (citation omitted).

My analysis follows. The producing party is obligated to produce responsive, non-privileged documents within the scope of discovery, if proportionate to the needs of the case. Every discovery response must be “formed after a reasonable inquiry,” pursuant to Fed.R.Civ.P. 26(g). 

“In sum, an ESI protocol and search terms work in tandem with the parties’ obligations under the Federal Rules and do not replace a party’s independent obligation to produce electronic (or paper) documents that are reasonably accessible, relevant, and responsive within the meaning of Rule 34.” Raine Grp. LLC v. Reign Cap., LLC, 2022 WL 538336, at *2 (S.D.N.Y. Feb. 22, 2022).

Another court held that: “Defendant had an independent duty to produce key relevant requested discovery even if plaintiff did not specifically list the precise ESI wording or spelling in its list of search terms. Defendant may not delegate to plaintiff the duty to identify its relevant requested documents.” Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022), quoting Montana v. Cnty. of Cape May Bd. of Freeholders, 2013 WL 11233748, at *9 (D.N.J. Sept. 20, 2013)(emphasis added). The Montana court wrote that civil litigation is not a “gotcha” game. Id. 

The federal rules do not require that plaintiff identify the exact “magic words” to obtain clearly relevant discovery. The “obligation on parties and counsel to come forward with relevant documents not produced during discovery is ‘absolute’.”

Id. 

In sum, I suggest that, while an order may include a “clawback” provision, no order is required for a Rule 26(b)(5)(B) clawback. There are known risks in relying on that Rule. A Fed.R.Evid. 502(d) order may be entered without consent of all parties. And, under Rule 26(g), a search term agreement does not supplant a party’s independent duty to respond to a Rule 34 document request with known, unprivileged, documents that are responsive and proportionate to the requests, even if those documents do not “hit” on search terms.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.