Nicole Gill discussed a recent case involving an administrative summons issued by the IRS, a federal court denied the respondent’s request for a clawback order under Rule 502(d) of the Federal Rules of Civil Procedure. The court’s analysis hinged on the fact that a summary proceeding before the IRS is unlike civil litigation, in which 502(d) orders are routinely entered to allow the return of documents that a party belatedly determines are protected by the attorney-client privilege or the work product doctrine. A 502(d) order allows parties to claw back inadvertently produced privilege documents with “no questions asked,” while such documents are otherwise handled under Rule 502(b), which requires a party to make a number of showings before it is allowed to claw back documents.
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