Proposed Rules Archives

• Proposed Changes to CR 26 - General Provisions Regarding Discovery (in Word Format)
• Comments Received for CR 26 - General Provisions Regarding Discovery

A. Purpose: Federal Rule of Civil Procedure 26(b)(5)(B) establishes what is often referred to as a “claw back” procedure. Through it, a party that has inadvertently disclosed privileged or trial-preparation materials through discovery may alert the receiving party of that event. After being notified, the receiving party must take steps to return, destroy, or sequester the subject material, and may not use or disclose it until the disclosing party’s claim of protection is resolved. The federal rule is procedural only; it does not purport to alter the legal standards applicable to privileges or their waiver.

The suggested amendment to Washington’s CR 26 would add a new subsection (b)(6) that is functionally identical to the federal “claw back” rule. A concurrent proposal to amend CR 45 would, as in its federal counterpart, restate this rule in the context of documents produced in response to a subpoena.