Hebert v. Chesapeake Energy Corporation, Inc. et al

Filing 30

AGREED CLAWBACK ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 2/12/2018. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSEPH HEBERT, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
CHESAPEAKE OPERATING, INC.
AND CHESAPEAKE
OPERATING, LLC,
Defendants.

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NO. 2:17-CV-00852-GCS-KAJ

AGREED CLAWBACK ORDER
Pursuant to Federal Rules of Evidence 502(d) and (e), Plaintiff Joseph Hebert
(“Plaintiff”) and Defendants Chesapeake Operating, Inc. and Chesapeake Operating, LLC
(“Chesapeake” or “Defendants”) (hereinafter, the “Parties”) agree to and the Court orders the
protection of privileged and otherwise protected documents against claims of waiver (including
as against third parties and in other federal and state proceedings), as follows:

a.

The disclosure or production of documents by a Producing Party subject to a
legally recognized claim of privilege, including without limitation the attorneyclient privilege and the work-product doctrine, to a Receiving Party, shall in no
way constitute the voluntary disclosure of such document.

b.

The inadvertent disclosure or production of any document in this action shall not
result in the waiver of any privilege, evidentiary protection or other protection
associated with such document as to the Receiving Party or any third parties, and
shall not result in any waiver, including subject matter waiver, of any kind.

c.

If, during the course of this litigation, a party determines that any document
produced by another party is or may reasonably be subject to a legally
recognizable privilege or evidentiary protection (“Protected Document”):
i.

the Receiving Party shall: (A) refrain from reading the Protected

Document any more closely than is necessary to ascertain that it is
privileged or otherwise protected from disclosure; (B) immediately notify
the Producing Party in writing that it has discovered documents believed
to be privileged or protected; (C) specifically identify the Protected
Documents by Bates number range or hash value, and, (D) within ten (10)
days of discovery by the Receiving Party, return, sequester, or destroy all
copies of such Protected Documents, along with any notes, abstracts or
compilations of the content thereof. To the extent that a Protected
Document has been loaded into a litigation review database under the
control of the Receiving Party, the Receiving Party shall have all
electronic copies of the Protected Document extracted from the database.
Where such Protected Documents cannot be destroyed or separated, they
shall not be reviewed, disclosed, or otherwise used by the Receiving Party.
Notwithstanding, the Receiving Party is under no obligation to search or
review the Producing Party’s documents to identify potentially privileged
or work product Protected Documents.
ii.

d.

If the Producing Party intends to assert a claim of privilege or other
protection over documents identified by the Receiving Party as Protected
Documents, the Producing Party will, within ten (10) days of receiving the
Receiving Party’s written notification described above, inform the
Receiving Party of such intention in writing and shall provide the
Receiving Party with a log for such Protected Documents that is consistent
with the requirements of the Federal Rules of Civil Procedure, setting
forth the basis for the claim of privilege or other protection. In the event
that any portion of a Protected Document does not contain privileged or
protected information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the document that omits the
information that the Producing Party believes is subject to a claim of
privilege or other protection.
If, during the course of this litigation, a party determines it has produced a
Protected Document:

i.

the Producing Party may notify the Receiving Party of such inadvertent
production in writing, and demand the return of such documents. Such
notice shall be in writing, however, it may be delivered orally on the
record at a deposition, promptly followed up in writing. The Producing
Party’s written notice will identify the Protected Document inadvertently
produced by bates number range or hash value, the privilege or protection
claimed, and the basis for the assertion of the privilege and shall provide
the Receiving Party with a log for such Protected Documents that is
consistent with the requirements of the Federal Rules of Civil Procedure,
setting forth the basis for the claim of privilege or other protection. In the
event that any portion of the Protected Document does not contain
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privileged or protected information, the Producing Party shall also provide
to the Receiving Party a redacted copy of the document that omits the
information that the Producing Party believes is subject to a claim of
privilege or other protection.
ii.

The Receiving Party must, within ten (10) days of receiving the Producing
Party’s written notification described above, return, sequester, or destroy
the Protected Document and any copies, along with any notes, abstracts or
compilations of the content thereof. To the extent that a Protected
Document has been loaded into a litigation review database under the
control of the Receiving Party, the Receiving Party shall have all
electronic copies of the Protected Document extracted from the database.

e.

To the extent that the information contained in a Protected Document has already
been used in or described in other documents generated or maintained by the
Receiving Party prior to the date of receipt of written notice by the Producing
Party as set forth in paragraphs (c)(ii) and (d)(i), then the Receiving Party shall
sequester such documents until the claim has been resolved. If the Receiving
Party disclosed the Protected Document before being notified of its inadvertent
production, it must take reasonable steps to retrieve it.

f.

The Receiving Party’s return, sequestering or destruction of Protected Documents
as provided herein will not act as a waiver of the Receiving Party’s right to move
for the production of the returned, sequestered or destroyed documents on the
grounds that the documents are not, in fact, subject to a viable claim of privilege
or protection. However, the Receiving Party is prohibited and estopped from
arguing that:
i.
ii.

the disclosure of the Protected Documents was not inadvertent;

iii.

the Producing Party did not take reasonable steps to prevent the
disclosure of the Protected Documents; or

iv.
g.

the disclosure or production of the Protected Documents acts as a waiver
of an applicable privilege or evidentiary protection;

the Producing Party failed to take reasonable or timely steps to rectify the
error.
Either party may submit Protected Documents to the Court under seal for a
determination of the claim of privilege or other protection. The Producing Party
shall preserve the Protected Documents until such claim is resolved. The
Receiving Party may not use the Protected Documents for any purpose absent this
Court’s Order.

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h.

Upon a determination by the Court that the Protected Documents are protected by
the applicable privilege or evidentiary protection, and if the Protected Documents
have been sequestered rather than returned or destroyed by the Receiving Party,
the Protected Documents shall be returned or destroyed within 10 (ten) days of
the Court’s order. The Court may also order the identification by the Receiving
Party of Protected Documents by search terms or other means.

i.

Nothing contained herein is intended to, or shall serve to limit a party’s right to
conduct a review of documents, data (including electronically stored information)
and other information, including without limitation, metadata, for relevance,
responsiveness or the segregation of privileged or protected information before
such information is produced to another party.

j.

By operation of the parties’ agreement and Court Order, the parties are
specifically afforded the protections of Federal Rules of Evidence 502 (d) and (e).

IT IS SO ORDERED.

Date: February 12, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Dated: February 9, 2018

Agreed By:

/s/Michael A. Josephson
Michael A. Josephson
Josephson Dunlap Law Firm
11 Greenway Plaza
Suite 3050
Houston, Texas 77046
[e-mail]
Texas State Bar No. 24014780

/s/ David B. Jordan
David B. Jordan (Attorney-in-Charge)
State Bar No. 24032603
S.D. Tex. No. 40416
[e-mail]
Allison C. Williams
State Bar No. 24075108
S.D. Tex. No. 1138493
[e-mail]
State Bar No. 24087255
S.D. Tex. No. 2330468
[e-mail]
LITTLER MENDELSON, P.C.
1301 McKinney Street, Suite 1900
Houston, Texas 77010

Richard M. Schreiber
Josephson Dunlap Law Firm
11 Greenway Plaza
Suite 3050
Houston, Texas 77046
[e-mail]
Texas State Bar No. 24056278

Alex R. Frondorf
[e-mail]
LITTLER MENDELSON, P.C.
1100 Superior Avenue, 20th Floor
Cleveland, Ohio 44114
216.696.7600 (Telephone)
216.696.2038 (Facsimile)

Robert E. DeRose, II
Barkan Meizlish Handelman Goodin DeRose
Wentz, LLP
250 E. Broad St., 10th Floor
Columbus, Ohio 43215
[e-mail]
Bar No. 0055214

ATTORNEYS FOR DEFENDANTS
ATTORNEYS FOR PLAINTIFFS JOSEPH CHESAPEAKE OPERATING, INC.
HEBERT, INDIVIDUALLY AND ON AND CHESAPEAKE OPERATING, LLC
BEHALF OF ALL OTHERS SIMILARLY
SITUATED

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