84 Lumber Company LP v. Thompson Thrift Construction, Inc.

Filing 34

PROTECTIVE ORDER CONTAINING CLAWBACK PROVISION. Signed by Magistrate Judge Terence P. Kemp on 5/9/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
84 LUMBER COMPANY, LP,
Plaintiff,
v.
THOMPSON THRIFT CONSTRUCTION,
INC.,
Defendant.

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Case No. 2:15-cv-1052
Judge Michaael H. Watson
Magistrate Judge Kemp

PROTECTIVE ORDER CONTAINING CLAWBACK PROVISION
The parties to this Stipulated Order have agreed to the terms of this Order; accordingly, it
is ORDERED:
(a) No Waiver by Disclosure. This order is entered pursuant to Rule 502(d) of the
Federal Rules of Evidence. Subject to the provisions of this Order, if a party (the “Disclosing
Party”) discloses or has disclosed information in connection with the pending litigation that the
Disclosing Party thereafter claims to be privileged or protected by the attorney-client privilege or
work product protection (“Protected Information”), the disclosure of that Protected Information
will not constitute or be deemed a waiver or forfeiture—in this or any other action—of any claim
of privilege or work product protection that the Disclosing Party would otherwise be entitled to
assert with respect to the Protected Information and its subject matter.
(b) Notification Requirements; Best Efforts of Receiving Party. A Disclosing Party
must promptly notify the party receiving the Protected Information (“the Receiving Party”), in
writing, that it has disclosed that Protected Information without intending a waiver by the
disclosure with explanation as specific as possible why the Protected Information is privileged.

Upon such notification, the Receiving Party must—unless it contests the claim of attorney-client
privilege or work product protection in accordance with paragraph (c)—promptly (i) notify the
Disclosing Party that it will make best efforts to identify and return, sequester or destroy (or in
the case of electronically stored information, delete) the Protected Information and any
reasonably accessible copies it has and (ii) provide a certification that it will cease further
review, dissemination, and use of the Protected Information. [For purposes of this Order,
Protected Information that has been stored on a source of electronically stored information that is
not reasonably accessible, such as backup storage media, is sequestered. If such data is retrieved,
the Receiving Party must promptly take steps to delete or sequester the restored protected
information.]
(c) Contesting Claim of Privilege or Work Product Protection. If the Receiving Party
contests the claim of attorney-client privilege or work product protection, the receiving Party
must—within five business days of receipt of the notice of disclosure—move the Court for an
Order compelling disclosure of the information claimed as unprotected (a “Disclosure Motion”).
The Disclosure Motion must be filed under seal and must not assert as a ground for compelling
disclosure the fact or circumstances of the disclosure. Pending resolution of the Disclosure
Motion, the Receiving Party must not use the challenged information in any way or disclose it to
any person other than those required by law to be served with a copy of the sealed Disclosure
Motion.
(d) Stipulated Time Periods. The parties may stipulate to extend the time periods set
forth in paragraphs (b) and (c).
(e) Attorney’s Ethical Responsibilities. Nothing in this order overrides any attorney’s
ethical responsibilities to refrain from examining or disclosing materials that the attorney knows

or reasonably should know to be privileged and to inform the Disclosing Party that such
materials have been produced.
(f) Burden of Proving Privilege or Work-Product Protection. The Disclosing Party
retains the burden—upon challenge pursuant to paragraph (c)—of establishing the privileged or
protected nature of the Protected Information.
(g) In camera Review. Nothing in this Order limits the right of any party to petition the
Court for an in camera review of the Protected Information.
(h) Voluntary and Subject Matter Waiver. This Order does not preclude a party from
voluntarily waiving the attorney-client privilege or work product protection. The provisions of
Federal Rule 502(a) apply when the Disclosing Party uses or indicates that it may use
information produced under this Order to support a claim or defense.
(i) Rule 502(b)(2). The provisions of Federal Rule of Evidence 502(b)(2) are
inapplicable to the production of Protected Information under this Order.
So Ordered.

/s/ Terence P. Kemp
United States Magistrate Judge
Dated: May 9, 2016