Order Governing The Inadvertent Disclosure Of Documents Or Other Materials (Rule 502(b))

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT v. C IVIL ACTION O RDER GOVERNING THE INADVERTENT DISCLOSURE OF DOCUMENTS OR OTHER MATERIAL UNDER RULE 502(b) Consistent with Federal Rule of Evidence 502( b ) and Federal Rule of Civil Procedure 26 (b) , the C ourt hereby ORDERS that the following procedures shall govern the inadvertent production of privileged or confidential documents: I. CLAWBACK OF PRIVILEGED OR PROTECTED DOCUMENTS A. If a party discloses information in connection with the pending litigation that the Disclosing Party thereafter claims to be privileged or protected by the attorney - client pri disclosure of that Protected Information shall not constitute a waiver or forfeiture in this or American LegalNet, Inc. www.FormsWorkFlow.com 2 any action of any claim of privilege or work product protection that the Disclosing Party would otherwise be entitled to assert with respect to the Protected Information and its subject matter if ( i ) the Disclosing Party took reasonable steps to prevent disc los ure and ( ii ) the Disclosing Party promptly took reasonable steps to rectify the error . For purposes of this Order, days of the discovery of the inadvertent disclosure . B. If a party receiving has reason to believe th at the information is subject to a n attorney - cl ient privilege or work product protection , the R eceiving P arty shall promptly notify the Disclosing Party of the potential inadvertent disclosure. Nothing in this Order overrides any attorney's ethical responsibilities to refrain from examining or disclosi ng materials that the attorney knows, or reasonably should know, to be privileged. C. When a Disclosing Party asserts a privilege or work product protection over inadvertently disclosed Protected Information , the parties shall follow the procedure set fort h in Fed. R. Civ. P. 26(b)(5)(B) and in accordance with the following provisions: 1 . T he Disclosing P arty shall, within days of the discovery of the inadvertent disclosure, notify the Receiving Party, in writing , that it has disclosed Protected Information without intending a waiver by the disclosure. The Disclosing Party must explain in the notification as specifically as possible why the Protected Information is privileged or protected . The Disclosing Party shall identify the Protected Informat ion by Bates - stamped number. If the Protected Information is not Bates - stamped, the Disclosing Party shall identify the Protected Information in a manner that reasonably permits the Receiving Party to easily locate the Protected Information at issue. American LegalNet, Inc. www.FormsWorkFlow.com 3 2. U pon receiving notification of the inadvertent disclosure, the Receiving Party must unless it challenges the claim of attorney - client privilege or work product protection or the ight to clawback the Protected Information in accordance wi th Paragraph 3 promptly (i) notify the Disclosing Party that it will make best efforts to identify and return, sequester, or destroy (or in the case of electronically stored information, delete) the Protected Information and any reasonably accessible copie s it has, and (ii) provide a certification that it will cease further review, dissemination, and use of the Protected Information. For purposes of this Order, Protected Information that has been stored on a source of electronically stored information that is not reasonably accessible, such as backup storage media, is sequestered. If such data is retrieved, the Receiving Party must promptly take steps to delete or sequester the restored protected information. For purposes of this Order, Protected Information that has been stored on a source of electronically stored information that is not reasonably accessible, such as backup storage media, is sequestered. If such data is retrieved, the Receiving Party must promptly take steps to delete or sequester the resto red protected information. 3. Any challenge to a Disclosing Party request to clawback Protected Information s hall be raised , in writing, by the R eceiving P art y within days after being notified of the Disclosing P Protected Information . The parties shall promptly meet and confer, in person or by telephone, to determine if the challenge can be resolved without judicial intervention. If the parties are unable to resolve the dispute, the Disclosing Party shall move the Court for a Protective Order compelling the return or destruction of the information claimed to be Protected Information. The Motion for a Protective Order, response to the motion, and reply memorandum may be filed under seal, if appropriate. Pending American LegalNet, Inc. www.FormsWorkFlow.com 4 reso lution of the Motion for a Protective Order, the Receiving Party must not use the challenged information in any way or disclose it to any person other than those required by law to be served with a copy of the sealed Motion for Protective Order. 4. The par ties may stipulate to extend the time periods set forth in Paragraphs 1 and 3 of this Order. 5. The Disclosing Party retains the burden upon challenge pursuant to Paragraph 3 of establishing the privileged or protected nature of the Protected Information a nd the right to clawback the Protected Information . 6 . Nothing in this Order limits the right of any party to petition the Court for an in camera review of the Protected Information. 7 . T his Order does not preclude a party from voluntarily waiving the atto rney - client privilege or work product protection. The provisions of Fed. R. Evid. 502(a) apply when the Disclosing Party uses or indicates that it may use information produced under this Order to support a claim or defense. II. DISCLOSURE OF D OCUMENTS INA DVERTENTLY NOT DESIGNATED AS CONFIDENTIAL In the event that a Disclosing Party mistakenly produces confidential information without a confidentiality designation as permitted by the Protective Order entered in this litigation, the following procedures shall apply: A. The Disclosing Party shall, within days of the discovery of the production , notify the Receiving Part y in writing, identifying the confidential information by Bates - stamped number. If the confidential information is not Bates - stamped, the Disclosing Party shall identify the confidential information in a manner that reasonably permits the Receiving Party t o easily locate the confidential information at issue. Within days thereafter, the Disclosing Party American LegalNet, Inc. www.FormsWorkFlow.com 5 shall provide a replacement copy of the confidential information CONFIDENTIAL and properly Bates - stamped with the original number, if applica ble. The Receiving Party shall promptly destroy or return the confidential information mistakenly produced without a confidentiality designation , including any copies it has , and replace it with the confidential information properly designated as confident ial. B. If a R eceiving P arty disputes the Disclosing P the Receiving Party may move the Court to challenge the confidential designation in accordance with the provisions of the P rotective O rder entered in this case. If a R eceiving P arty elects to file such a motion, the R eceiving P arty may retain possession of the confidential information , but shall treat it in accordance with the terms of the Protective Order pending resolution of the motion. If the R eceiving P arty's moti on is denied, the parties shall promptly comply with Paragraph II. A. of this Order. C) The production of such document does not constitute a waiver of any claim of confidentiality as set forth in the Protective Order in this matter, unless otherwise det ermined by the court. The Clerk is hereby directed to send copies of this Order to counsel of record and any unrepresented party. ENTER : American LegalNet, Inc. www.FormsWorkFlow.com