Carolina Sunrock LLC v. The Lane Construction Corporation

Filing 28

ORDER PURSUANT TO FEDERAL RULE OF EVIDENCE 502(d) - Signed by District Judge Louise Wood Flanagan on 3/23/2016. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-603
CAROLINA SUNROCK LLC f/k/a
CAROLINA SUNROCK
CORPORATION,
Plaintiff,
v.
THE LANE CONSTRUCTION
CORPORATION f/k/a REA
CONTRACTING, LLC, individually and
as successor in interest to REA
CONSTRUCTION COMPANY, INC.,

ORDER PURSUANT TO FEDERAL
RULE OF EVIDENCE 502(d)

Defendant.

THIS CAUSE came before the Court pursuant to the joint motion, filed by Plaintiff
Carolina Sunrock LLC f/k/a Carolina Sunrock Corp. (“Carolina Sunrock”) and Defendant
The Lane Construction Corp. f/k/a REA Contracting, LLC, both individually and as the
successor-in-interest to REA Construction Company, Inc. (“Lane Construction,” or,
collectively with Carolina Sunrock, the “Parties”), for entry of an order addressing the
inadvertent disclosure of privileged materials in discovery pursuant to Fed. R. Evid. 502(d).
Upon agreement by the Parties, and for good cause shown, this Court hereby orders that
the inadvertent disclosure of privileged materials shall be governed by the following
provisions:
1.

Generally. The inadvertent disclosure of documents that are subject to the

attorney-client privilege, the work product doctrine, or any other applicable privilege,

protection, or immunity (“Privileged Material”) shall not be deemed to waive whatever
privilege, protection, or immunity would otherwise attach to that document.
2.

Definition of Inadvertent Disclosure. The term “inadvertent disclosure”

refers to the unintentional production of Privileged Material by the Producing Party despite
the Producing Party (or its counsel) having taken reasonable, pre-production precautionary
measures to preserve and protect the privilege.
3.

Clawback Procedure For Inadvertent Disclosures.
a.

Notification of Inadvertent Disclosure by the Producing Party. Within

two (2) business days of discovering that Privileged Material was inadvertently produced,
the Producing Party shall notify the Receiving Party and identify said Privileged Material.
The Parties agree that a reasonable time period to make a claim of inadvertent disclosure
of Privileged Material shall be six (6) months from production of said inadvertently
produced Privileged Material.

If the Producing Party claims to have inadvertently

produced Privileged Material, Receiving Party shall: (i) immediately return, delete, or
destroy such Privileged Materials and copies thereof within five (5) business days of
receiving notice of the inadvertent disclosure; (ii) immediately return, delete, or destroy
any portions of work product that reflect or are derived from such Privileged Materials and
copies thereof within five (5) business days of receiving notice of the inadvertent
disclosure; (iii) not make any use of such Privileged Material or work product; and (iv) on
request by the Producing Party, confirm in writing that it has returned, deleted, or destroyed
all such inadvertently produced Privileged Material and any copies thereof.

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b.

Discovery of Inadvertent Disclosure by the Receiving Party. If the

Receiving Party knows, or reasonably should know, that it has received Privileged
Material, it shall promptly: (i) sequester such Privileged Material; (ii) refrain from using
such Privileged Material or any portions of work product that reflect or are derived from
such Privileged Material; (iii) within two (2) business days, promptly notify the Producing
Party of the existence of such Privileged Material in order to permit the Producing Party to
exercise the protective measures outlined above; and (iv) upon request of the Producing
Party, comply with the procedures described above for the return, deletion, or destruction
of such Privileged Material.
4.

The Right to Challenge Privilege Designations. Nothing herein shall limit

the Receiving Party’s right to challenge the Producing Party’s claim that certain Privileged
Material are protected from disclosure by the attorney-client privilege, the work product
doctrine, or any other applicable privilege, protection, or immunity. If the Parties are
unable to resolve any disputes relating to the designation of Privileged Material as, in fact,
being privileged or protected from disclosure after a good faith meet and confer, the
Receiving Party may file the appropriate motion with Court. In no event, however, may
the Receiving Party keep or use the Privileged Material inadvertently disclosed after the
Producing Party has requested that it be returned, deleted, or destroyed in conformity with
paragraph 3, supra.
5.

Privileged Materials Submitted to the Court. Any Privileged Material

ordered submitted to the Court in connection with a challenge to the Producing Party’s
claim of privilege or protection shall not be filed in the public record; rather, they shall be
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filed under seal for the Court to conduct an in camera inspection. If the Privileged Material
filed under seal requires specialized equipment or software for full in camera review, the
Producing Party agrees to make the necessary arrangements for complete in camera
viewing by the Court.
SO ORDERED, this the ____ day of March, 2016.
23rd
_______________________________
LOUISE W. FLANAGAN
United States District Judge

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