§ 2031.285.Electronically stored information; privileged

Producing electronically stored information at scale makes it almost inevitable that something privileged slips through, and this section builds the claw-back mechanism that lets a producing party undo that mistake without forfeiting the underlying protection. If produced electronically stored information is subject to a claim of privilege or attorney work-product protection, the party making that claim can notify anyone who received the material, explaining both the claim and its basis.

Once that notice goes out, the receiving party has to act immediately: sequester the specified information and either return it (and any copies) or present it to the court conditionally under seal so the court can rule on the claim. Until a motion under this section is resolved, the receiving party is barred from using or disclosing the material, and if the receiving party had already used or disclosed it before getting the notice, that party must take immediate, reasonable steps to retrieve it once notified.

A receiving party who disagrees with the claim is not stuck handing the material back without a fight; that party may contest the claim by moving the court for a ruling within 30 days of receiving the claim, presenting the disputed material to the court conditionally under seal as part of that motion. Until the court resolves the legitimacy of the claim, the receiving party has to preserve the information, keep it confidential, and refrain from using it in any way. This claw-back procedure works hand in hand with the privilege-log requirements of Section 2031.240 and the deposition-side counterpart in Section 2025.460, giving California a uniform mechanism for handling inadvertent disclosure across the different discovery tools.