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,
*
*
V.
*
CV 103-050
■k
ELECTROLUX HOME PRODUCTS,
*
INC., HUSQVARNA, A.B., and
HUSQVARNA OUTDOOR PRODUCTS,
INC.,
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*
*
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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
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