On May 10, 2012, Micron Technology filed its Motion requesting that the Court order S2 Automation to enter into a non-waiver of privilege and clawback agreement. See Doc. 46. Micron Technology relates that it has attempted to resolve this dispute with S2 Automation outside the courtroom, but that it has not been able to reach a resolution. See Motion at 1–3. It relates that “[a]greement or orders of this type are considered to be good practice, and district courts in other jurisdictions have recognized their usefulness.” Motion at 3–4. Micron Technology asserts that the agreement it has proposed is consistent with the terms of rule 502(e) of the Federal Rules of Evidence-which provides non-waiver and clawback procedures. See Motion at 4–5. It asserts that “S2 [Automation] has not presented any reasonable basis to object to the proposed order.” Motion at 5. Micron Technology's proposed Non–Waiver and Claw–Back Order, filed May 10, 2012 (Doc. 46–1), provides:

*2 Non–Waiver and Claw–Back Order at 2–3.

On May 23, 2012, S2 Automation filed its S2's Response to Motion for Protective Order and Motion for Clawback. See Doc. 59 (“Response”). S2 Automation asserts that Micron Technology has not met its burden to show that the proposed Non–Waiver and Claw–Back Order is necessary to protect its interests. See Response at 6. S2 Automation focuses its arguments in its Response almost entirely on a separate dispute about a protective order Micron Technology has proposed. See Response at 1–14. S2 Automation contends that it “does not believe a claw back order is required but if the Court is inclined to adopt a claw back order, a separate order is not required and the provisions should be as set forth in ¶ 12 of Exhibit E.” Response at 13–14.[1]

At the hearing on June 15, 2012, the Court asked S2 Automation why it was resisting the entry of the Non–Waiver and Claw–Back Order, given that the order would mutually benefit all parties. See Transcript of Hearing at 92:8–14 (taken June 15, 2012)(Court)(“Tr.”).[2] S2 Automation related that it does not want to run into a situation where it is conducting a deposition and the other side asserts, during the deposition, that a document S2 Automation is using in the deposition should not have been produced. See Tr. at 92:15–24 (Holland). It related that the attorneys in the case are subject to ethical rules and rules of professionalism, so there is no need for such an agreement. See Tr. at 92:25–93:4 (Holland). The Court noted that it becomes more complicated to obtain inadvertently disclosed documents without an agreement such as this one in place. See Tr. at 93:5–11 (Court). The Court related that the Non–Waiver and Claw–Back Order would extend only to privileged documents and not to documents identified as confidential pursuant to a confidentiality order. See Tr. at 93:12–18 (Court). The Court stated that, even if the parties are in Israel, they are free to call the Court for a quick ruling on a dispute that arises. See Tr. at 93:19–94:2 (Court). The Court related that entering the Non–Waiver and Claw–Back Order would expedite the proceedings and get documents into S2 Automation's hands more quickly. See Tr. at 93:19–94:2 (Court). The Court told the parties that it will enter the Non–Waiver and Claw–Back Order and that, if S2 Automation has problems with the order, it may approach the Court with its concerns. See Tr. at 94:3–9 (Court).

Given that the proposed Non–Waiver and Claw–Back Order is consistent with the Court's authority under rule 502(d) and contains no questionable terms, the Court will grant the Motion. Rule 502(b) of the Federal Rules of Evidence provides:

Fed.R.Evid. 502(b). Rule 502(d) provides: “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court-in which event the disclosure is also not a waiver in any other federal or state proceeding.” Fed.R.Evid. 502(d). Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure provides:

Fed.R.Civ.P. 26(b)(5)(B).

Under rule 502(d), the Court has the power to enter an order like the Non–Waiver and Claw–Back Order that Micron Technology has proposed. See Fed.R.Evid. 502(d). As the advisory committee note to this rule explains, it is not necessary for the parties to agree to such an order for a court to enter one. See Fed.R.Evid. 502(d) advisory committee's note (“Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court's order.”). The Court concludes that entry of Micron Technology's proposed Non–Waiver and Claw–Back Order is appropriate. “Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery.” Fed.R.Evid. 502(d) advisory committee's note. Accord Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of N.M., No. 09–0885, 2010 WL 4928866, at *8 (D.N.M. Oct. 22, 2010)(Browning, J.) (quoting Fed.R.Evid. 502(d) advisory committee's note). In situations where a party can waive attorney-client privilege or work-product privilege by disclosure, producing parties will produce discovery more slowly to protect privileges, which ultimately increases costs for both parties. See Manuel for Complex Litigation (Fourth) § 11.431, at 63 (2004)(“Parties sometimes try to facilitate discovery by agreeing that the disclosure of a privileged document will not be deemed a waiver with respect to that document or other documents involving the same subject matter.”). The proposed order largely memorializes the basic provisions in rule 502(b) and rule 26(b)(5)(B) while adding some uncontroversial details regarding procedures that the parties should follow. None of the provisions are tailored in a way that they benefit either party more than the other. This case has largely gotten off track based on discovery disputes such as this one. This order is noncontroversial, given that it applies only to privileged information and work product, which undercuts S2 Automation's concern that clawback rules would apply to documents parties have designated as confidential. It does not apply to any information subject to a separate confidentiality order.

*4 S2 Automation does not quibble with the details of Micron Technology's proposed Non–Waiver and Claw–Back Order, but does not like the overall concept. The train on that concept has already left the station, and clawback orders are staples of modern complex commercial litigation. See Doe v. Nebraska, 788 F.Supp.2d 975, 986 (D.Neb.2011)(“The parties are encouraged to consider using protective orders, or ‘claw-back’ agreements such as those contemplated under Rule 502(d) and (e).”). As Professor James Moore has stated:

6 J. Moore, Moore's Federal Practice § 26.49[5][h][v], at 26–387 (3d ed.2012)(footnotes omitted). Furthermore, S2 Automation's proposed language for a clawback agreement appears in a confidentiality order it has proposed, and the Court cannot easily use the language in the proposed confidentiality order to create a straightforward order regarding non-waiver of privilege like the one Micron Technology has provided. Thus, the Court will enter Micron Technology's proposed Non–Waiver and Claw–Back Order.

IT IS ORDERED that Micron Technology, Inc.'s Motion for Entry of a Non–Waiver and Claw–Back Order, filed May 10, 2012 (Doc. 46), is granted.

Presumably, S2 Automation refers to a draft of a Protective Order, filed May 10, 2012 (Doc. 48–5) that has redline edits on it. This document is attached to a separate filing. See Doc. 48–5. This provision provides:

The Court's citations to the transcript of the hearing refer to the court reporter's original, unedited version. Any final transcript may contain slightly different page and/or line numbers.