Electrolux Home Prod v. Whitesell Corp

Filing 1101

ORDER granting 1064 Motion to Strike. The Clerk of Court is directed to Strike from the record the following: 1060 Motion for Summary Judgment; 1061 Statement of Material Facts, and 1059 Response in Opposition to Motion. Further the Court terminates 1058 Motion to Seal. Upon redaction, Plaintiff Whitesell may re-file the stricken documents within 7 days upon entry of this Order. Signed by Chief Judge J. Randal Hall on 11/16/2018. (pts)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

WHITESELL CORPORATION,

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*

Plaintiff,

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V.

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CV 103-050

■k

ELECTROLUX HOME PRODUCTS,

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INC., HUSQVARNA, A.B., and
HUSQVARNA OUTDOOR PRODUCTS,
INC.,

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Defendants.

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ORDER

Presently before the Court is an ''Expedited Motion for
Determination

of

Attorney

Client

Privilege

Document Cited in Plaintiff's Court Filings"

filed

by

Defendant

September 26, 2018.

Husqvarna

Outdoor

and

to

Strike

(doc. no.

Products,

1064)

Inc.

on

Through this motion, Husqvarna complains

that Plaintiff Whitesell Corporation attached a privileged email chain as an exhibit
Defendants'

Motion

Motion

Partial

for

for

(Exhibit 29)

Partial

Summary

to its Opposition to

Summary

Judgment

Judgment

on

Annual

and Cross-

Rebates.^

Husqvarna contends that the e-mail chain was inadvertently
produced

^

to

Whitesell

Whitesell

in

discovery

and

is

subject

to

the

filed a placeholder page for Exhibit 29

because it simultaneously filed a motion to seal the exhibit.
(See Doc.

No.

1059-29.)

attorney-client privilege.
of

the ''Clawback

Husqvarna invokes the protection

Provision"

in

the

parties'

^'Stipulated

Protocol for the Production of Documents," thereby seeking the

destruction of all copies of the e-mail chain in Whitesell's

possession and the refiling of the pleadings that reference
and/or attach the exhibit.

(See generally Def. Husqvarna's

Mot., Doc. No. 1064, Ex. A, § IX.)

Because Exhibit 29 is subject to a pending motion to seal
and has not been made part of the record, Husqvarna provided
a copy of the exhibit to the presiding judge for in camera
review.

The Court has now reviewed Exhibit 29, the post-filing

exchange of letters and e-mails discussing whether the exhibit
was privileged and subject to the Clawback Provision (Def.

Husqvarna's Expedited Mot., Exs. B-D), Husqvarna's expedited
motion (doc. no. 1064), Whitesell's response thereto (doc. no.
1072), Husqvarna's reply (doc. no. 1084), and the relevant
law.

The matter is resolved as follows.

At

the

outset

of

the

parties'

extensive

document

production in this case, they entered into the Stipulated
Protocol for the Production of Documents on April 3, 2015.
("Stipulated Protocol," Doc. No. 1064-1.)

The Stipulated

Protocol provides protection through Section IX, the "Clawback

and

Non-Waiver"

provision,

in

the

event

that

privileged

documents and ESI are inadvertently produced. (Id. at 11-14.)

The ClawbacJc Provision provides a detailed protocol of how the

parties are to disclose, confer, and handle inadvertently
produced

attorney-client

documents

or

ESI.

(Id.)

The

Clawback Provision comes into play when the "receiving party
discovers that it is in receipt of a document or ESI that it
reasonably believes might contain Privileged Information."

(Id.. § IX(B), at 12 (emphasis added).)

The burden falls upon

the receiving party to notify the producing party within ten
business days of such discovery. (Id.)

Once the producing

party is so notified, it has ten days to request the return of
the privileged document or ESI through a Clawback Letter.

(Id. § IX(C), at 12.)

Any disagreement between the parties

requires that they meet and confer prior to filing a motion.
(Id. § IX(E), at 13.)

In this case, Whitesell did not provide any notice to

Husqvarna

prior

to

filing

Exhibit

29.

In

estimation, this is where Whitesell went wrong.

the

Court's

Exhibit 29 is

an email communication initiated by a client to the company's
attorney seeking advice on the wording of a communication with
an adversarial litigant in a pending lawsuit.

The ensuing

emails discuss the legal interpretation of the Consent Order
between the parties.
this lawsuit.

It also discusses paramount issues in

It is a

document that Whitesell should

have

''reasonably believe[d] might contain Privileged Information"

from the outset.^

In fact, the Court readily concludes that

Exhibit 29 is privileged and subject to the full protections
of

the

Clawback

Provision.

Whitesell's

argument

that

Husqvarna's attorney was acting in a business advisory role is
a non-starter.

Court

So too is Whitesell's waiver contention.

recognizes

that

because

labeled "confidential",
extensive review.
contention

is

"confidential"

Provision.

it

the

was

document

presumably

issue

subject

to

was
an

Nevertheless, to accept Whitesell's waiver
to

presume

could

never

that
be

documents

subject

to

designated

the

Clawback

Given the enormity of document production in this

case, the Court is unwilling to do so.
would

at

The

contravene

the

parties'

expression

Also, such waiver
in

the

Clawback

Provision that "[t]he obligations of the parties set forth in
[the Clawback Provision] apply irrespective of the care taken

by the producing party to prevent inadvertent disclosure."
(Stipulated Protocol, § IX(H), at 14 (emphasis added).)
In sum, Whitesell should have notified Husqvarna that

^
Section VIII of the Stipulated Protocol addresses
privileged documents and ESI in the context of creating a
privilege log.
In this section, the parties agreed that a
certain category of documents and ESI is "presumptively
privileged" and therefore did not have to be listed on the
privilege log. The presumptively privileged category includes
"communications between outside counsel for any party and the
party such counsel represents (via the party's officers,
directors, employees or agents)."
The Court notes that
Exhibit 29 falls within this category.

Exhibit 29 may be privileged and therefore subject to the full

protections of the Clawback Provision prior to filing the
document

with

the

Court.

For

this

reason,

Husqvarna

is

invited to submit an account of its costs and attorney's fees

incurred in filing its expedited motion within seven (7) days
hereof for the Court's consideration of the same.

Upon the foregoing, Husqvarna's expedited motion (doc.
no. 1064) is GRANTED.

IT IS ORDERED that the Clerk of Court

shall STRIKE from the record in their entirety all pleadings
that

attach

following:

Whitesell's

or

reference

Exhibit

(1) ''Declaration

Opposition

to

of

29,

Joy

which

Odom

Defendants'

includes

in

Support

Motion

for

the

of

Partial

Summary Judgment and Cross-Motion for Partial Summary Judgment
on

Annual

Rebates"

(doc.

no.

1059);

(2)

"Plaintiff's

Opposition to Defendants' Motion for Partial Summary Judgment
and

Cross-Motion

for

Partial

Summary

Judgment

on

Annual

Rebates" (doc. no. 1060); and (3) "Plaintiff's Response to

Defendants' Statement of Undisputed Facts and Conclusions of
Law as to Annual Rebates and Plaintiff's Counterstatement of

Additional

Undisputed

Material

Facts" (doc.

no.

1061).

Moreover, the Clerk shall TERMINATE the motion to seal that
includes

Exhibit

29

(doc.

no.

1058).

Upon

redaction,

Whitesell may re-file the stricken documents within seven (7)
days upon entry of this Order.

ORDER ENTERED

at Augusta,

Georgia,

this

day of

November, 2018.

HALL, 'CHIEF JUDGE

J. RA

UNITED

TATES DISTRICT COURT
N

DISTRICT OF GEORGIA