Performance Sales & Marketing, LLC, Iredell County et al

Filing 144

ORDER granting 141 Motion for Partial Reconsideration; granting 143 Motion for Entry of Consent Order. Court directs dft to undertake the steps set out in this order to produce dcmts in response to plf's Req/Prod/Dcmts No. 8. All dcmts produced shall be subject to the terms of the Protective Order entered on 11/3/2010. Signed by Magistrate Judge Dennis Howell on 8/3/2011. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:07cv140
PERFORMANCE SALES &
)
MARKETING, LLC, a North Carolina
Limited Liability Company; PSM
GROUP, INC., a North Carolina
Corporation; an GREG SEREY, an
individual,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
LOWE’S COMPANIES, INC.,
)
)
Defendant.
)
___________________________________ )

ORDER

Pending before the Court is Defendant’s Motion for Partial Reconsideration
[# 141]. Defendant moves the Court to reconsider its prior Order granting Plaintiff’s
Motion to Compel and limit the scope of the production ordered. Subsequently, the
parties came to an agreement as to the scope of production and request the Court to
enter a Consent Order [# 143] resolving the Motion for Partial Reconsideration.
Upon a review of the parties’ motions and the record in the this case, the Court
GRANTS the Motion for Entry of Consent Order [# 143]. Pursuant to the agreement
of the parties, the Court GRANTS the Motion for Partial Reconsideration [# 141].
The Court DIRECTS Defendant to undertake the following steps to produce
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documents in response to Plaintiffs’ Request for Production of Documents No. 8:
(1)

Defendant will search the emails of employees within the divisions that
are most likely to have communication with the manufacturers and
vendors. These are:
a.

Defendant’s personnel at the merchandising manager level
for the product categories serviced by PSM;

b.

The VSM group; and

c.

Accounting personnel who handled trade payables and
vendor payables.

(2)

The time period of the search shall be January 1, 2001 through
December 31, 2006;

(3)

The search terms will consist of the names of vendors of products that
PSM serviced;

(4)

Defendant will apply an electronic privilege filter to exclude
communications with counsel in lieu of a manual privilege review;

(5)

Defendant shall maintain a claim of privilege pursuant to Rule 502(d)
of the Federal Rules of Civil Procedure. Defendant’s production of these
documents in connection with Plaintiffs’ discovery request shall not
waive any claim of privilege or work product that Defendant may assert

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as to these materials. For any documents withheld under a claim of
privilege made independent of the electronic privilege filter, Defendant
will produce a privilege log. Further, Defendant may claw back any
privileged documents that are inadvertently produced.
(6)

All documents produced shall be subject to the terms of the Protective
Order, entered on November 3, 2010.
Signed: August 3, 2011

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