Jackson v. Eastman Chemical Company et al

Filing 30

ORDER granting 28 Motion for Non-Waiver Order Pursuant to Rule 502(d) of the Federal Rules of Evidence. Signed by Honorable J Michelle Childs on 7/6/2017.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Jacob S. Jackson,
Plaintiff,
vs.
Eastman Chemical Company and Mundy
Maintenance Services and Operations,
LLC,
Defendants.

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Civil Action No. 5:17-cv-01015-JMC

NON-WAIVER ORDER PURSUANT
TO RULE 502(d) OF THE FEDERAL
RULES OF EVIDENCE

The Court enters this order regarding non-waiver of the attorney-client privilege, the
work product doctrine, and other applicable privileges arising out of inadvertent production of
privileged documents.
Federal Rule of Civil Procedure 502(d) expressly preserves a party’s right to assert
privilege over certain documents and information, even if such documents or information are
disclosed, stating as follows (in relevant part):
Controlling Effect of a Court Order. A federal court may order that
the privilege or protection is not waived by disclosure connected
with the litigation pending before the court - in which event the
disclosure is also not a waiver in any other federal or state
proceeding.
Therefore, it is hereby ORDERED that:
1.

Pursuant to Rule 502(d) of the Federal Rules of Evidence, inadvertent production

of documents

or

electronically stored

information

(“ESI”) (hereinafter collectively

‘‘Inadvertently-Produced Documents”) subject to work-product immunity, the attorney-client
privilege, or other legal privilege protecting information from discovery shall not constitute a
waiver of the immunity or privilege, provided that the producing party shall notify the receiving

party in writing as set forth below. In the event that a party inadvertently produces documents or
ESI subject to a claim of privilege, the producing party shall, within 15 days of the discovery of
the inadvertent disclosure, notify the other party in writing of the inadvertent disclosure. The
producing party may, in the notice, request a “c1awback” of the inadvertently disclosed
document or ESI. Upon receiving notice of the inadvertent production, the parties shall follow
the procedures provided by Federal Rule of Civil Procedure 26(b)(5)(B) with respect to the
c1awback of the Inadvertently-Produced Documents. All notes or other work product of the
receiving party, reflecting the contents of such materials, shall be destroyed and not used unless
successfully challenged. Notwithstanding the foregoing, the producing party shall be deemed to
have waived any claim of privilege or work product immunity with respect to any document or
ESI produced to which the producing party fails to assert privilege or work product immunity,
prior to thirty days before the close of discovery.
2.

In the event that the receiving party challenges the clawback of the Inadvertently-

Produced Documents, the producing party must file a motion within 10 business days after
receiving notice of the inadvertent disclosure to seek a ruling by the Court regarding the claim of
privilege. If the receiving party elects to file a motion, it may retain possession of the
Inadvertently-Produced Documents as well as any notes or other work product of the receiving
party reflecting the contents of such materials pending the resolution by the Court of the motion,
but it shall segregate and not use them pending resolution of the motion. Any InadvertentlyProduced documents used as part of a motion or in response to a motion shall be filed under seal
or as otherwise directed by the Court.

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3.

The party receiving such Inadvertently-Produced Documents will not, in

responding to any motion filed by the producing party, assert the fact or circumstances of the
inadvertent production to challenge whether the material is, in fact, privileged.
4. There is no waiver of privilege or work product protection in this matter or any other
matter in any other jurisdiction for any document or ESI clawed-back under this clause, or for
the subject matter of any such document or ESI, whether the privileged document or ESI was
inadvertently provided following review or as part of a “Quick Peek” production. In the event
that either party receives information produced in discovery from the other party that reasonably
appears to be Inadvertently-Produced Documents, the receiving party shall promptly notify the
producing party in writing of the apparently inadvertent production.

IT IS SO ORDERED.
s/J. Michelle Childs
The Honorable J. Michelle Childs
United States District Judge
July 6, 2017
Columbia, South Carolina

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