Baker Concrete Construction Inc v. Savannah River Nuclear Solutions LLC

Filing 31

CLAWBACK AGREEMENT, CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER Signed by Honorable J Michelle Childs on 10/28/2013. (Attachments: # 1 Exhibit A Consent Form)(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
BAKER CONCRETE
CONSTRUCTION, INC.
Plaintiff,
vs.
SAVANNAH RIVER NUCLEAR
SOLUTIONS, LLC,
Defendant.

) CIVIL ACTION NO.: 1:13-cv-01545-JMC
)
)
)
) CLAWBACK AGREEMENT,
) CONFIDENTIALITY STIPULATION AND
) PROTECTIVE ORDER
)
)
)
)
)
)

I. CLAWBACK AGREEMENT
Background and Definitions
The above-named Plaintiff and Defendant (collectively “the parties” and individually
“party”) represented by the attorneys signing this agreement are exchanging electronically stored
information (“ESI”) and documents in paper form.

The exchange of ESI and documents

(“Discovery Materials”) is required or desirable because of discovery disclosures and requests in
litigation involving the parties.

This Clawback Agreement (“Agreement”) applies to all

discovery, whether produced as ESI, in paper form, or other formats.
In this Agreement:
“Document” means any material, either tangible or in electronic format, which was
exchanged during the course of this proceeding.
“Privilege” means and includes both any privilege, for example the attorney-client
privilege, and also trade secret protection and work product protection.

CLAWBACK AGREEMENT, CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER

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“Inadvertent production” means production that has not been done with an intentional
and knowing relinquishment of the claim of privilege.
Each party is attempting to identify and withhold from production any document which
that party believes is privileged. The nature and amount of items being exchanged, and the
numbers of persons who might be involved in the process of searching, preserving, and
exchanging documents, create a problem of inadvertent production. There is a real possibility
that the party producing Discovery Materials (“producing party”) may inadvertently produce
privileged material to the party requesting Discovery Materials (“requesting party”).
AGREEMENT
The parties agree that:
Production of any document that, prior to production, was subject to any applicable
privilege shall not constitute a waiver of the privilege, provided that the parties comply with the
provisions of this Agreement.
Producing Party
Upon learning that an inadvertent production has occurred, the producing party shall
notify the requesting party that the document was inadvertently produced and should have been
withheld as privileged. The notice shall identify the document, the portions of the document that
were inadvertently produced, and the first known date the document was produced. If the party
that produced a document claims that only a portion of the document was inadvertently
produced, the party shall provide with the notice of inadvertent production a new copy of the
document with the allegedly privileged portions redacted.

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Requesting Party
The requesting party is under a good faith obligation to promptly alert the producing
party if a document appears on its face or in light of facts known to the requesting party to be
privileged.
Upon receipt of the notice of inadvertent production, the requesting party promptly
should secure the specified document, any copies of it, and any notes that reproduce, copy, or
otherwise disclose the substance of the privileged information. If the requesting party chooses
not to contest the assertion of privilege, the requesting party shall promptly return the specified
document to the producing party, any copies of it, and any notes that reproduce, copy, or
otherwise disclose the substance of the privileged information.
By complying with its obligation to secure the specified document, any copies of it, and
any notes that reproduce, copy, or otherwise disclose the substance of the privileged information,
the requesting party does not waive any right it has to challenge the assertion of privilege, or to
request an order of the Court denying such privilege and ordering the producing party to return
the disputed document to the requesting party.
In the event the requesting party disputes the assertion of privilege, the parties shall meet
and confer and the requesting party shall either: (a) return the material to the producing party; or
(b) present the information to the Court for an in camera inspection or under seal for a
determination as to whether the material is protected from disclosure.
Thereafter the requesting party shall make no direct use of the document or its contents,
unless:
(1) The Court declares that the privilege has been waived or the material is not
privileged;

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(2) The parties agree to the use of the document or material; or
(3) The document or its contents are obtained by other means, including, but not limited
to, other investigation, other discovery process, or a court order.
The parties hereby agree that “Confidential Materials,” as defined below, may be filed
under seal with the Court pursuant to the procedural steps set forth in Local Civil Rule 5.03,
DSC.
II. PROTECTIVE ORDER
This matter is before the Court for a Protective Order limiting dissemination of certain
confidential documents of the parties, their members, and subtiers. Both parties have served
requests for production which call for documents and ESI which the parties agree should be
disseminated solely as set forth below and herein. It appears to the Court that the parties, through
their respective counsel, consent to this Protective Order (“Order”).
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
1.

The parties may produce, formally or informally, Discovery Materials that contain

proprietary, confidential or other business-sensitive information ("Confidential Materials") and
which may therefore be entitled to protection from dissemination.
2.

All Discovery Materials exchanged between the Parties shall be considered

Confidential Materials and the dissemination of such materials shall be limited as provided
herein.
3.

Copies, extracts, summaries, notes, and other derivatives of Discovery Materials

also shall be deemed Confidential Materials and shall be subject to the provisions of this Order.
4.

Discovery Materials produced in the litigation shall be disseminated only to: the

parties, their members and subtiers and their respective counsel and support staff; court

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personnel; court reporters transcribing a deposition, hearing or other court proceeding; experts
retained in connection with the above-captioned litigation; and, potential witnesses and their
counsel; as long as each signs a Consent Form (Exhibit A) agreeing to the terms and conditions
of this Clawback Agreement, Confidentiality Stipulation and Protective Order.
5.

Depositions or portions thereof upon oral or written questions may be classified as

Confidential Materials either by an examining party's attorney or by an attorney defending or
attending the deposition. A party claiming that a deposition or any portion thereof is Confidential
Material shall give notice of such claim to the other affected parties and persons either prior to or
during the deposition, or within twenty-eight (28) days after receipt of the deposition transcript,
and the testimony taken and the transcript of such deposition or portion thereof shall be
designated as Confidential Materials.
6.

Discovery Materials may be used for no purposes other than the prosecution or

defense of this action.
7.

No Discovery Materials shall be divulged by the parties or their counsel to anyone

other than as set forth herein without the written permission of the opposing party or by order of
the Court.
8.

All such persons to whom Discovery Materials are disclosed, including fact and

expert witnesses, shall be given a copy of this Order and shall be bound by its terms, except for
purposes of trial, and shall sign a Consent Form (see Exhibit A) agreeing to its terms and
conditions.
9.

Parties may use Discovery Materials during depositions provided that any

depositions in which Discovery Materials are utilized shall be subject to the terms of this
Agreement.

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10.

Counsel for each party shall take all reasonable precautions to prevent

unauthorized or inadvertent disclosure of any Discovery Materials.
11.

The parties hereto have agreed that “Confidential Materials” may be filed under

seal with the Court. Accordingly, in the event a party seeks to rely on any document that is
subject to protection under this Agreement and Order in any matter filed with the Court, that
party shall take appropriate action to insure that the Confidential Materials receive the maximum
protection from public disclosure by seeking permission to file the Confidential Materials under
seal pursuant to the procedural steps set forth in Local Civil Rule 5.03, DSC. Nothing in this
Agreement and Order, however, shall be construed as a prior directive of the Court to the clerk
of court requiring that any document be filed under seal.

The parties understand that

Confidential Materials may be filed under seal only with the permission of the Court after proper
motion pursuant to Local Civil Rule 5.03.
12.

Use of Confidential Materials at trial shall be addressed at, or prior to the pretrial

conference.
13.

At the conclusion of this action, pursuant to agreement between the parties,

counsel for the parties shall either return or destroy all of the Discovery Materials subject to this
Order and all copies thereof, produced by the respective parties.
14.

Nothing contained herein shall preclude the parties or a person from raising any

available objection, or seeking any available protection with respect to any Discovery Materials,
including but not limited to the grounds of admissibility of evidence, materiality, trial
preparation materials and privilege.

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IT IS SO ORDERED THIS 28th day of October, 2013.

s/J. Michelle Childs
J. Michelle Childs, District Judge
300 East Washington Street
Greenville, SC 29601

SIGNATURES ON FOLLOWING PAGE

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WE CONSENT:

WE CONSENT:

_s/J. Calhoun Watson______________
Signature of Plaintiff’s Counsel

_s/N. Ward Lambert_______________
Signature of Defendant’s Counsel

J. Calhoun Watson
Fed. I.D. No.: 4794
[e-mail]
Sowell Gray Stepp & Laffitte, L.L.C
1310 Gadsden Street
Post Office Box 11449
Columbia, South Carolina 29211
[phone] Telephone
[phone] Facsimile

N. Ward Lambert, Esq.
Fed. I.D. No.: 015095
[e-mail]
Harper, Lambert & Brown, P.A.
420 East Park Avenue, Suite 220 (29601)
Post Office Box 908
Greenville, South Carolina 29602
[phone] Telephone
[phone] Facsimile

and

and

James E. Moye
John S. Pachter
Florida State Bar No. 810356
Virginia State Bar No.: 00425
Email: [e-mail]
Email: [e-mail]
Stephen W. Pickert
Mark E. Hanson
Florida State Bar No. 329045
Virginia State Bar No.: 27924
Email: [e-mail]
Email: [e-mail]
Brian P. Heald
SMITH PACHTER McWHORTER PLC
Florida State Bar No. 241880
8000 Towers Crescent Drive, Suite 900
Email: [e-mail]
Vienna, VA 22182
Moye, O’Brien, O’Rourke, Pickert & Dillon, [phone] Telephone
LLP
[phone] Facsimile
800 South Orlando Avenue
(Admitted Pro Hac Vice)
Maitland, FL 32751
[phone] Telephone
Counsel for:
[phone] Facsimile
Savannah River Nuclear Solutions, LLC
(Admitted Pro Hac Vice)
Counsel for:
Baker Concrete Construction, Inc.

Dated: October 28, 2013

Dated: October 28, 2013

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