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Abington Emerson Capital, LLC v. Landash Corp.

United States District Court, S.D. Ohio, Eastern Division

August 2, 2019

ABINGTON EMERSON CAPITAL, LLC, Plaintiff,
v.
LANDASH CORPORATION, et al., Defendants.

          Sarah D. Morrison Judge.

          OPINION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendants XPO Logistics, Inc.'s and XPO Global Forwarding, Inc.'s (collectively, “XPO”) Motion for a Rule 502(D) Order. (Doc. 232). The Motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         In February 2019, Defendant XPO requested that the parties agree to a Rule 502(d) order. (Doc. 221 at 8). Over the past several months, the parties “have met and conferred extensively about the potential entry of” such an order but have been unable to agree on all terms. (Id.). On June 27, 2019, the Court held a status conference with the parties to discuss the status of, among other things, this dispute. (Doc. 230 at 1). The Court directed the parties “to continue to meet and confer concerning agreed language for a 502(d) Claw Back Order.” (Id. at 2). The conferral process was unsuccessful, Defendant XPO filed the instant Motion on July 8, 2019, and briefing on the Motion is now complete.

         II. DISCUSSION

         Through the conferral process, the parties agreed to the entry of at least some form of a Rule 502(d) order. (See Doc. 243 at 12 (email from counsel for Plaintiff to Defendant XPO's counsel, stating “[a]s a compromise, we are willing to agree to the terms set forth in the attached Model 502(d) Order.”)). Although Plaintiff now hints that it opposes any iteration of a clawback agreement (Doc. 243 at 16 (“XPO's Motion should be denied in its entirety” because “XPO does not even attempt to show good cause” to support entering a Rule 502 order)), the parties' communications show that the true dispute is about what terms should be included in such an agreement. Specifically, three key sticking points remain: (1) whether the Rule 502(d) order should have retroactive application; (2) whether the Rule 502(d) order should apply to documents that were inadvertently, rather than intentionally, produced; and (3) whether the Rule 502(d) order should contain a deadline for identifying privileged documents to be clawed back. The Court addresses each of these issues in turn.

         Rule 502 applies “to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.” Fed.R.Evid. 502. The Rule states, in relevant part, that:

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal ...

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