Sargent, Pamela M., United States Magistrate Judge
In a parallel case to Adair
v. EQT Prod. Co., 2012 WL 1965880 (W.D. Va. May 31, 2012), the court issued the
identical ruling on defendant’s motion for a protective order and required
defendant to filter and search the 370 GB of data before providing it to
plaintiff. Defendant was not required to
conduct a privilege review at an expense of several million dollars, as the
parties had a clawback agreement that protected defendant from any potential waiver.
Class action case in which plaintiffs sought payment for royalties under mineral lease contracts. The parties agreed to multiple protective orders in the case, including a clawback provision that provided: “The producing party is specifically authorized to produce Protected Documents without a prior privilege review, and the producing party shall not be deemed to have waived any privilege or protection in not undertaking such a review.”
Defendant collected 370 GB of data and sought a protective order to preclude it from having to pay the cost to review the data for privilege, and seeking cost-shifting to plaintiffs. The proposed cost for a vendor to handle the data and the review together was estimated at over $4 million (before any data was culled out). After reviewing key decisions on the issue, the court held that it may consider the cost of review of ESI for privileged or responsive information in deciding whether discovery imposes and undue burden or cost on the responding party under FRCP 26.
Instead, the court found an alternate approach that made more sense; it told defendant it did not need to review the material for privilege as the clawback order in place precluded any potential waiver issues. The court did, however, require defendant to use search terms agreed upon by the party to filter the data by custodian, date and search terms for the plaintiffs, rather than providing a complete data dump.
v.
EQT PRODUCTION COMPANY, Defendant
Counsel
Daniel E. Seltz, Lieff Cabraser Heimann & Bernstein LLP, New York, NY, Don John William Barrett, Barrett Law Offices, Lexington, MS, Elizabeth A. Alexander, Lieff Cabraser Heimann & Bernstein LLP, Nashville, TN, for Plaintiff.Wade W. Massie, Stephen M. Hodges, Penn Stuart & Eskridge, Abingdon, VA, Mark E. Frye, Penn Stuart & Eskridge, Bristol, TN, for Defendant.