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Gladstone Consulting, Inc. v. Miles & Stockbridge P.C.
United States District Court, S.D. Florida, West Palm Beach Division
May 22, 2017
GLADSTONE CONSULTING, INC., AUBREY W. GLADSTONE, HARBOUR DRIVE, LLC, JAX ASSET/DEBT MANAGEMENT, INC., and EPIX HOLDINGS CORPORATION, Plaintiffs,
MILES & STOCKBRIDGE P.C., Defendant.
ORDER APPROVING PROPOSED FEDERAL RULE OF EVIDENCE
M. HOPKINS UNITED STATES MAGISTRATE JUDGE.
CAUSE is before this Court upon referral from the District
Judge (DE 11). This Court has before it the Parties'
Proposed Federal Rule of Evidence 502(d) Order. The Court
APPROVES the proposed Order, with a minor amendment. The word
"[i]nadvertent" is inserted at the beginning of
paragraph A of the Order. An amended version of the
parties' agreed confidentiality order follows this Order.
AND ORDERED in Chambers this 22nd day of May, 2017, at West
Palm Beach in the Southern District of Florida.
parties to this litigation have agreed that, in order to
facilitate the production and receipt of information during
discovery, the following Order shall be entered pursuant to
Federal Rule of Evidence 502(d) and Federal Rule of Civil
Procedure 26(c)(1) for the protection of privileged materials
that may be inadvertently produced or otherwise disclosed
during the course of the litigation by any party and by any
third party (hereinafter, "party" generically
refers to any party or third-party, as may be applicable).
the parties to this case or third parties may be required to
produce documents, answer interrogatories, and provide
testimony and other information that may contain information
covered by the attorney-client privilege or work product
protection, and in order to permit discovery to proceed
without delay and avoid possible disputes regarding the
privileged or protected nature of such information, the Court
A. Inadvertent disclosure (including production) of
information that a producing party later claims should not
have been disclosed because of a privilege, including, but
not limited to, the attorney-client privilege or work product
doctrine ("Privileged Information"), shall not
constitute a waiver of, or estoppel as to, any claim of
privilege for withholding production as to which the
producing party would be entitled in the above-captioned
action or any other federal or state proceeding.
B. If a receiving party discovers that it is in receipt of a
document or ESI that it reasonably believes might contain
Privileged Information, it shall notify the producing party,
and identify the document in question, within ten (10)
business days of such discovery.
C. Upon discovery by a producing party (whether by notice
from the receiving party, or otherwise) that it did or may
have produced Privileged Information, the producing party
shall promptly request the return of such Privileged
Information by sending a written notification ("Clawback
Letter") to the receiving party, which shall identify
the documents or ESI in question by Bates number or otherwise
and the basis on which the privileged information should have
been withheld from production. The requirements in this
paragraph apply equally to instances in which a producing
party discovers during a deposition that it did or may have
produced Privileged Information. For purposes of this Order,
"discovery" shall mean "actual notice;"
production of Privileged Information alone is insufficient to
constitute actual notice.
D. Within five (5) business days of receipt of a Clawback
Letter, the receiving party shall return, destroy or
sequester all documents or ESI containing Privileged
Information identified in the letter, and all reproductions
or summaries thereof regardless of whether the receiving
party plans to challenge the claim of privilege, and confirm
in writing that all such documents or information have been
returned, destroyed or sequestered. The receiving party shall
follow these procedures regardless of whether a document is
comprised fully or partially of Privileged Information. The
producing party shall, within twenty (20) business days of
the date of the Clawback Letter, reproduce any document or
ESI that is comprised only partially of Privileged
Information with the Privileged Information redacted.
E. If a receiving party disagrees with a claim of privilege
set forth in a Clawback Letter, it shall notify the producing
party and provide the basis for disputing the privilege claim
in writing. The producing party must preserve the information
claimed to be privileged or otherwise protected until the
claim is resolved. Thereafter, the parties shall meet and
confer in a good faith attempt to resolve the dispute.
F. In the event that the parties do not resolve their
dispute, the receiving party may bring a motion for a
determination of whether a privilege applies. If such a
motion is made, the producing party shall submit to the
Court, under seal and for in camera review, a copy
of the disputed Privileged Information in connection with its
motion papers. This in camera submission to the
Court shall not constitute a waiver of any privilege or
protection. Any motion to determine whether a privilege
applies shall be filed no later than thirty (30) days after
the parties meet and confer. All documents and ESI identified
in any Clawback Letter shall be included in the privilege
logs produced by the parties.
G. The parties agree that counsel that receives inadvertently
produced privileged information will not be subject to
disqualification or any other sanction by virtue of being in
possession of, or having reviewed or used, directly or
indirectly, the privileged information prior to a clawback
demand; nor will the fact that the lawyer is aware of the
privileged information after a clawback demand and indirectly
uses such information in defense of the case be grounds for
H. Except as expressly set forth herein, nothing in this
section, or elsewhere in this stipulation, shall limit the
bases on which a receiving party may challenge the assertion
of any ...