United States District Court, S.D. Ohio, Eastern Division
D. Morrison Judge.
OPINION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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
(3) they ought in fairness to be considered
(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 ...