Waxse, David J., United States Magistrate Judge
In this second eDiscovery decision in this matter, Judge Waxse denied defendant's motion seeking to allow them to use an inadvertently produced privileged communication. Defendant made the motion AFTER it had sought and obtained a court order from Judge Waxse titled "Protective Order Containing Clawback Provision" that specifically provided:
Plaintiff argued that he relied on the Order as a basis for providing discovery in an expedited fashion. Defendant argued plaintiff failed to take the reasonable steps required by FRE 502 to rely on the agreement, but did not dispute that the document was privileged.The inadvertent disclosure or production of any information or document that is subject to an objection on the basis of attorney-client privilege or work -product protection, including but not limited to information or documents that may be considered Confidential Information under the Protective Order (doc. 40) entered in this case on January 4, 2010, will not be deemed to waive a party's claim to its privileged or protected nature or estop that party or the privilege holder from designating the information or document as attorney-client privileged or subject to the work product doctrine at a later date. (Emphasis added)
v.
McGUIRE WOODS, LLP, Defendant
Counsel
Boyce N. Richardson, John M. Edgar, Brian T. Bear, Matthew J. Limoli, Edgar Law Firm, LLC, Kansas City, MO, David W. Edgar, Edgar Law Firm, LLC, Denver, CO, for Plaintiff.Adam B. Weiss, Christina O. Broderick, Jose L. Minan, Warren R. Stern, Wachtell, Lipton, Rosen & Katz, New York, NY, Cathy J. Dean, Diana L. Beckman, James M. Humphrey, Miriam E.C. Bailey, R. Lawrence Ward, Polsinelli Shughart PC, Jean Paul Bradshaw, II, Lathrop & Gage, LLP, Kansas City, MO, Phillip R. Garrison, Polsinelli Shughart PC, Springfield, MO, for Defendant.
ORDER DETERMINING PRIVILEGE WAIVER AND CLAWBACK
Due to the large volume of electronic and hard copy data in the possession, custody, or control of the parties and the numerous concerns regarding attorneyclient privilege and work product protection, the Court enters this “Clawback” Provision to expedite and facilitate the production of electronic and hard copy data, information and documents, and to protect against inadvertent disclosure of attorney-client privileged communications or work product materials. The inadvertent disclosure or production of any information or document that is subject to an objection on the basis of attorney-client privilege or work -product protection, including but not limited to information or documents that may be considered Confidential Information under the Protective Order (doc. 40) entered in this case on January 4, 2010, will not be deemed to waive a party's claim to its privileged or protected nature or estop that party or the privilege holder from designating the information or document as attorney-client privileged or subject to the work product doctrine at a later date.[4]