City of Seattle v. Monsanto Company et al
LETTER re Parties' 175 Stipulated Mutual Clawback Order. The proposed order received by the Court will remain lodged in the file, but will not be entered. The parties may resubmit a proposed order if they remedy the identified deficiencies. Signed by Judge Robert S. Lasnik. (LH)
Case 2:16-cv-00107-RSL Document 178 Filed 04/26/21 Page 1 of 2
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF W ASHINGTON
UNITED STATES COURTHOUSE
700 STEWART STREET
SEATTLE, W ASHINGTON 98101
ROBERT S. LASNIK
April 26, 2021
1201 3rd Ave, Suite 3200
Seattle, WA 98101-3052
7701 Forsyth Blvd, 12th Floor
St. Louis, MO 63105
Delivered Via CM/ECF
City of Seattle v. Monsanto Company, et al. (C16-107-RSL)
Proposed Stipulated Mutual Clawback Order
Dear Ms. Williams-Derry and Ms. DeBord:
On March 30, 2021, the Court received your proposed “Stipulated Mutual Clawback
Order.” Dkt. # 175.
Pursuant to Fed. R. Civ. P. 26(c), protective orders may be entered to protect parties from
annoyance, embarrassment, oppression, or undue burden or expense, including protecting
confidential commercial information. Such protective orders may issue upon a showing of
Additionally, parties may agree to entry of a non-waiver order under Fed. R. Evid.
502(d), but the order must be consistent with the applicable federal and local procedural
rules. Rule 502(d) pertains to waiver by “disclosure,” not waiver by use.
The proposed order submitted in this case is deficient because it purports to expand the
Case 2:16-cv-00107-RSL Document 178 Filed 04/26/21 Page 2 of 2
“obligations of the receiving parties” under Fed. R. Civ. P. 26(b)(5)(B) to documents
produced at hearings, trials, and other proceedings, Dkt. #175, when Rule 26(b)(5)(B)
pertains specifically to information “produced in discovery.” Similarly, the proposed
order also provides that the non-waiver provision will apply not only to the production of
documents, but to the “production, use, or introduction of any documents in this
proceeding.” Dkt. # 175. The Court will not adopt the proposed order because it attempts
to expand the non-waiver provision too far, permitting the parties to claw back documents
used “in depositions and court filings, at any time—conceivably, even through the close
of litigation.” Certain Underwriters at Lloyd’s, London v. Nat’l Railroad Passenger Corp.,
218 F. Supp. 3d 197, 2023 (E.D.N.Y. 2016) (describing such an outcome as an “absurd
result”and explaining that Rule 502(d) was not intended to “insulate parties entirely from
the possibility of waiver”).
The proposed order received by the Court will remain lodged in the file, but will not be
entered. The parties may resubmit a proposed order if they remedy the deficiencies
identified in this letter.
Robert S. Lasnik
United States District Judge
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