Johns Manville Corporation et al v. Knauf Insulation, LLC et al

Filing 118

ORDER PRESERVING PRIVILEGE by Judge R. Brooke Jackson on 3/10/16. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00531-RBJ
JOHNS MANVILLE CORPORATION, a Delaware corporation, and
JOHNS MANVILLE, a Delaware corporation,
Plaintiffs,
v.
KNAUF INSULATION, LLC, a Delaware corporation,
WALTER A. JOHNSON, individually, and
KNAUF INSULATION GMBH, a German corporation,
Defendants.

ORDER PRESERVING PRIVILEGE

On December 18, 2015, the Court authorized Plaintiffs to retain a forensic accounting
firm to locate certain documents, as described in paragraph 10 of the Parties’ Stipulated Order
entered, as modified, on that date (“Stipulated Order”). The order states that (1) the accounting
firm’s review “shall not include attorney client privileged communications and materials and
shall not violate any applicable foreign privacy law” and (2) the scope of the review is limited to
“the purpose of locating Category A, B, and C documents.”
Plaintiffs retained the accounting firm Stout Risius Ross (“SRR”) to conduct the review
contemplated by the Stipulated Order.

SRR has asked Defendant Knauf Insulation, Inc.

(“Knauf”) to provide SRR certain electronically stored information (“ESI”) that QDiscovery,
LLC (“QDiscovery”) collected from Knauf and maintains (the “Knauf ESI”) at the direction of
Knauf’s counsel for purposes of Knauf’s defense to the claims in this case and to respond to
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discovery requests issued by Plaintiffs.

SRR may further ask Knauf to provide access to

additional documents, information, or data reasonably required by SRR to complete its
investigation (collectively with “Knauf ESI,” the “Knauf Information”). By seeking entry of this
Order Preserving Privilege (the “Order”), the Parties herein agree to the below procedure to
allow Knauf to disclose the Knauf Information, including but not limited to the copies of Knauf
ESI maintained by QDiscovery, from Knauf during the course of this investigation in a way that
will (1) preserve any privilege and protection applicable to any such information, (2) ensure the
confidentiality of the Knauf Information, and (3) allow for the disposition of the Knauf
Information at the conclusion of this litigation.
NOW, THEREFORE, for good cause shown and based on the representations and
stipulations of the Parties, the Court ORDERS the following:
1.

Within five (5) business days of entry of this Order, Knauf shall provide to SRR

complete, unprocessed electronic copies of the Knauf ESI, along with all chain of custody
information and acquisition documentation necessary for SRR to verify the technical methods of
collection for the Knauf ESI.

Knauf may withhold or redact from said chain of custody

information or acquisition documentation information protected by the attorney-client privilege
or work product doctrine. To the extent SRR is unable to verify the technical methods of
collection or seeks additional Knauf Information, SRR may conduct interviews of the custodians
Knauf identified in the Stipulated Order and make its own collection of their documents,
information, or ESI as reasonably necessary to complete the review authorized by the Court;
provided, however, that SRR shall cooperate with Knauf in scheduling any such interviews and
collections at reasonable times and with the participation of Knauf’s counsel. After receiving
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any Knauf Information, SRR shall load or process the Knauf Information onto its review system
and return the Knauf Information, including all unprocessed ESI, to Knauf’s counsel as soon as
possible; however, if loading or processing any Knauf Information takes more than ten (10)
business days, SRR will notify Knauf and counsel for Plaintiffs in writing and identify the reason
for the delay.
2.

Within five (5) business days of entry of this Order, Knauf shall provide to SRR

keyword and name filters to be used by SRR to identify information potentially protected by the
attorney-client privilege or the work product doctrine. After loading any Knauf Information onto
its review system, SRR shall electronically apply SRR’s filters for identifying the relevant set of
Knauf Information that may contain Category A, B, and C documents (the “Relevant Knauf
Information”). SRR will segregate all Knauf Information not identified as Relevant Knauf
Information and not allow access to or review of any of this segregated information unless and
until SRR follows the privilege review process set forth below for Relevant Knauf Information.
Before SRR may review any of the Relevant Knauf Information, SRR shall apply Knauf’s
keyword and name filters to segregate and return to Knauf’s counsel all Relevant Knauf
Information identified by those filters as potentially protected by the attorney-client privilege or
the work product doctrine. Knauf will then review the returned Relevant Knauf Information for
privilege. Within thirty (30) days after SRR returns Relevant Knauf Information to Knauf for
privilege review, Knauf will return to SRR any of the Relevant Knauf Information that does not
contain information protected by the attorney-client privilege or work product doctrine and will
further provide to SRR and counsel for Plaintiffs a privilege log of documents not returned,
except that Knauf may elect to return documents to SRR with any privileged or protected
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information redacted. SRR may physically review the Relevant Knauf Information not returned
to Knauf for Category A, B and C documents while Knauf is performing its privilege review.
The Parties agree and the Court finds that this constitutes reasonable steps to prevent disclosure
of privileged or protected information, as required by Federal Rule of Evidence 502(b).
3.

The Court further ORDERS, pursuant to Federal Rule of Evidence 502(d), that

any disclosure to SRR by Knauf of any information covered by the attorney-client privilege or
work product doctrine shall not constitute a waiver in this action or in any other federal or state
proceeding. There shall be no waiver in this or any other proceeding of any privileged or
protected information, including but not limited to any information with respect to:
a.

Documents disclosed that contain privileged or protected information;

b.

The subject matter of any such documents, including any related communications
or documents;

c.

Any communications or documents relating to those who sent or received or are
named in any documents disclosed; and

d.

Any communications between QDiscovery and Knauf or its lawyers.

4.

Any privilege or protection attaching to the above before disclosure under this

Order shall remain preserved after disclosure to SRR, and Knauf shall have the right to assert the
privilege or protection as if the disclosure had not been made, regardless of the forum and
regardless of whether the person or entity challenging or defending the applicability of the
privilege or protection is a party to this action. This Order further does not prevent Plaintiffs
from challenging the merits of any claim of privilege made by Knauf in this litigation. Any
disclosure to SRR by Knauf in connection with this litigation shall not be used by any person or
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entity in this or any other proceeding to argue or assert that Knauf waived any privilege or
production by such disclosure.
5.

If SRR has any reason to believe that any document or information produced by

Knauf may contain information that is privileged or otherwise protected, SRR shall:
a.

Promptly notify counsel for Knauf;

b.

Make no further use of the material or information obtained through it;

c.

Not disclose contents of the material or information in its report or otherwise;

d.

Return or destroy all copies of the privileged or protected material as directed by
Knauf in writing; and

e.

If SRR has disclosed the material or information to any other person or entity, it
will advise Knauf’s counsel of this fact and take all reasonable steps to retrieve
and destroy the same as directed by Knauf in writing.

6.

SRR shall not use Knauf Information for any purpose other than to locate

Category A, B, and C documents as provided in the Stipulated Order. SRR shall not allow any
person or entity access to Knauf Information or otherwise disclose Knauf Information to any
person or entity except as provided below. SRR, however, may communicate with counsel for
Plaintiffs to reasonably determine how to identify Category A, B, and C documents without
referring to or disclosing the content of any Knauf Information.
7.

SRR may allow employees of SRR access to Knauf Information for the purpose

of conducting the review contemplated by the Stipulated Order, but it shall not allow any such
access until SRR and Plaintiffs have complied with the disclosure procedures set forth in
Paragraph V.E. of the Stipulated Confidentiality Protective Order entered on September 1, 2015.
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As of the date of this order, JM has complied with those procedures for only the following SRR
employees: Michael Kahaian; Sean Renshaw; Jeff Bagalis; and Mandi Wiggins.
8.

SRR shall maintain a log of all Knauf Information it receives and shall control

access to the Knauf Information such that only those SRR employees allowed to view Knauf
Information under Paragraph 7 have reviewed the Knauf Information in order that it can account
for all Knauf Information provided to SRR and to allow SRR to comply with the return and
certification procedures below.
9.

SRR shall not under any circumstances provide or disclose any Knauf

Information to Plaintiffs or their counsel, except that, subject to the terms of Paragraph 11 below,
SRR may prepare a report to Plaintiffs’ counsel identifying the Category A, B, and C documents
SRR located in its review and where those documents were disseminated within Knauf or outside
of Knauf. The report may attach copies of those documents and/or identify any such document
by a description of the title, author, date, to/from information, and/or bates number, or such
information as reasonably necessary to locate the document in Knauf’s production. The report
and any exhibits to the report shall not include any information protected by the attorney-client
privilege or work product doctrine or otherwise excluded under Paragraphs 10.A. and 10.B. of
the Stipulated Order.
10.

Prior to providing Plaintiffs’ counsel with the report described in paragraph 9

above, SRR shall deliver to Knauf the report and any exhibits and provide Knauf five (5)
business days to review the report and exhibits to confirm that they do not contain any
information that is privileged or work product or otherwise excluded by the Stipulated Order.
SRR and Knauf shall confer in good faith for a period of no more than five (5) business days to
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resolve any Knauf objections on this basis. The Parties may thereafter submit any remaining
disputes to the Court for resolution within five (5) business days.
11.

Once all procedures specified under paragraph 10 are completed, SRR shall

provide its report to Plaintiffs’ counsel, and at that time, provide to Plaintiffs’ counsel all
documents identified in the report as Category A, B, and C documents. If, however, Knauf
notifies SRR of its intent to submit a dispute under Paragraph 10 to the Court for resolution,
those portions of the report and exhibits referencing said dispute shall be redacted until the
dispute is resolved. At the same time, SRR shall provide Knauf with a complete copy of the
report and any other documents or materials SRR has provided to Plaintiffs’ counsel, along with
complete copies of all communications between SRR and any other entity relating to SRR’s
review and report, and complete copies of all of SRR’s working papers, files, and/or reports.
12.

No later than 90 days after SRR provides its report to Plaintiffs’ counsel as

described above, SRR shall place the Knauf Information into near-term secure storage, and shall
securely retain the Knauf Information until the conclusion of this litigation, including all appeals.
No later than 60 days after the conclusion of this litigation, SRR shall return or destroy the
originals and all copies of all Knauf Information as directed by Knauf in writing and provide
Knauf with a certification signed by a principal of SRR stating under oath that SRR has complied
with all its obligations under this Order and the Stipulated Protective Order.
13.

SRR is subject to the jurisdiction of the Court for all purposes arising under this

Order, including enforcement of its terms.
14.

This order is intended to supplement and not supersede the terms of the Stipulated

Order.
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15.

This order shall be interpreted to provide the greatest protection allowed by

Federal Rule of Evidence 502 or otherwise.

Knauf may seek a protective order pursuant to Rule 26(c), Federal Rules of Civil Procedure in
the U.S. District Court for the District of Colorado to enforce the terms of this agreement and to
protect the confidentiality of privileged or otherwise protected information.

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Respectfully submitted,
/s/ David E. Sipiora
David E. Sipiora
Miranda C. Rogers
Kevin M. Bell
KILPATRICK, TOWNSEND & STOCKTON LLP
1400 Wewatta Street, Suite 600
Denver, CO 80202
[phone] – Telephone
[phone] – Facsimile
[e-mail]
[e-mail]
[e-mail]

Attorneys for Plaintiffs Johns Manville Corporation
and Johns Manville

/s/ D. Rusty Denton
Daniel J. Lueders
Spiro Bereveskos
WOODARD, EMHARDT, MORIARTY
MCNETT & HENRY LLP
111 Monument Circle, Suite 3700
Indianapolis, Indiana 46204-5137
[phone] – Telephone
[phone] – Facsimile
[e-mail]
[e-mail]

D. Rusty Denton
BINGHAM GREENEBAUM DOLL LLP
10 West Market Street, Suite 2700
Indianapolis, Indiana 46204-4900
[phone] – Telephone
[phone] – Facsimile
[e-mail]

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Perry L. Glantz
Stinson Leonard Street LLP
6400 S. Fiddlers Green Circle
Suite 1900
Greenwood Village, CO 80111
[phone] – Telephone
[phone] – Facsimile
Email: [e-mail]
Attorneys for Defendants Knauf Insulation, Inc.
and Knauf Insulation GmbH

/s/ James R. Sweeney
John R. Maley
James R. Sweeney II
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, Indiana 46204
[phone] – Telephone
[phone] – Facsimile
[e-mail]
[e-mail]
Attorneys for Defendant
Walter Johnson
/s/ Michael N. Kahaian
Michael N. Kahaian
Stout Risius Ross
400 Colony Square
1201 Peachtree Street, NE, Suite 1717
Atlanta, Georgia 30361
[phone] - Telephone
[phone] – Facsimile
[e-mail]
Representative of Non-Party Stout Risius Ross

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Approved and So Ordered.

March 10, 2016

____________________________________
R. Brooke Jackson
United States District Court Judge

68265379V.1

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