FRCP 26 (b) (5) (B) Protecting Trial-Preparation Materials and Clawback (E-Discovery)

You have a duty to disclose responsive ESI, but some things are sacred. The duty does not apply to protected material, such as your secret recipe
or formula, trade secrets, intellectual property, or materials prepared in preparation for the possible trial. The duty to disclose also does not apply to privileged material (between you and an attorney, for example).
However, mistakes happen. Too many (or not enough) people are involved, there isn’t enough time to purge the privileged content from the ESI you’re producing, or documents are redacted superficially or incompletely. The point is, you inadvertently gave away protected materials and you want them back.
FRCP 26(b)(5)(B) gives courts a clear (or at least a clearer) procedure for settling claims if you hand over ESI to the requesting party that you shouldn’t have. Typically, when privileged ESI is inadvertently sent to the requesting party, you may get the privileged material returned or destroyed if a claw-back agreement exists between the parties and you move fast. For privileged attorney-client and work product-protected ESI, FRE 502 bolsters FRCP 26(b) (5)(B) by maintaining the privilege or protection for inadvertently disclosed ESI. The carpenter’s principle of measure twice, cut once applies here.
Specify the scope of your right to clawback inadvertently produced privileged information with your opponent and exercise that right as soon as you make an inadvertent disclosure. A clawback agreement enables you to get back inadvertently disclosed ESI, or have it destroyed, or at least not be used by the opposing party. Clawback allows for more liberal and timely e-discovery while still protecting your privilege, confidentiality, or work product protection. But local rules may have different procedures and timelines.
Rule 16(b)(6) permits inclusion of your agreements regarding non-waiver and clawback of privilege material in case management and scheduling orders.