Clawback Agreements In Commercial Litigation: Can You Unring A Bell?

div clbrief chat with Woe Mart’s General Counsel
Imagine this scenario: Woe Mart, Inc. – atells you that this is a high stakes, multi-party complex
multibillion dollar corporation with hundreds ofcommercial litigation. The first thing that you do is to
employees and offices all over the country –have Woe Mart’s General Counsel send an
has been embroiled in several commercial disputesemail to all of its employees instructing them to
with its suppliers. Woe Mart’s Generalsuspend all document-destruction policies and institute
Counsel and his team have been trying to negotiate aa “litigation hold.” Next, you ask to
settlement to avoid litigation for the past couple ofmeet with Woe Mart’s IT personnel. Being the
months. However, one fine Monday, Woe Martseasoned litigator that you are, you are well aware
receives a notice from the suppliers’ lawyersthat discovery disputes are the black holes of the
of an imminent lawsuit to be filed in a federal courtmodern day complex commercial litigation. Woe
along with a request to preserve “any and allMart’s IT personnel informs you that your
evidence, including but not limited to electronicclient possesses several types of electronic data that
evidence.” Woe Mart decides to hire a brilliantmay be subject to discovery: email (including
and seasoned litigator to defend against this (frivolous!)attachments), word processing documents,
lawsuit. Naturally, you get the call. You have notspreadsheets, presentation documents, graphics,
spoken to your client at length about the case, and youanimations, images, audio, video and audiovisual
have not reviewed any documents. However, yourrecordings, instant messaging and voicemail.