In Callan v. Christian Audigier, Inc., 2009 WL 4844422 (C.D. Cal. Oct. 27, 2009), Magistrate Judge Rosalyn Chapman denied defendant's motion to enforce the inadvertent production "clawback" provision of  a protective order, ruling that defendants had failed to meet their burden that the documents were produced inadvertently.

In August, defendant's counsel sent plaintiff's counsel a letter informing him of defendant's inadvertent production of 34 documents contained on a produced hard drive and sought their prompt return or destruction or return pursuant to the court's "clawback" provision in a protective order. Plaintiff's counsel responded that it could not locate the documents without a more specific request since they were contained within the hundreds of thousands of documents produced by defendants.  The documents on defendant's produced hard drive were in a completely random order, with no sub-folders or other system to allow plaintiff to locate the allegedly inadvertently produced documents.

The court, citing Federal Rule of Civil Procedure 502, ruled that defendants had not met their burden of proof or demonstrated that they took reasonable steps to prevent the disclosure of protected information or took the appropriate steps to rectify the error once discovered.  Defendants admitted that the documents at issue did not appear on their privilege log.  Defendant's counsel refused to put the documents on the log arguing that the documents were not responsive to any of plaintiff's discovery requests. Defendants also failed to indicate the specific privileges that applied to each of the produced documents.  The court ordered defendants to pay plaintiff's reasonably attorneys fees in connection with responding to defendant's "meritless motion" in the amount of $1,268.50.