1012-00005 · Stonefield Logistics Group · Document Management

clawback-agreement-502d-stipulation.docx DOCUMENT Litigation

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STIPULATION AND [PROPOSED] ORDER REGARDING ASSERTION OF PRIVILEGE AND PROTECTION AGAINST WAIVER PURSUANT TO FEDERAL RULE OF EVIDENCE 502(d)

PREAMBLE

Plaintiff Vantor Holdings Corp. ("Vantor" or "Plaintiff"), by and through its counsel of record, Caldwell Royce & Shapiro LLP, 1 Liberty Plaza, 22nd Floor, New York, New York 10006, and Defendant Stonefield Logistics Group Inc. ("Stonefield" or "Defendant"), by and through its counsel of record, Calderwood & Harkness LLP, 200 Park Avenue, 38th Floor, New York, New York 10166, hereby stipulate and agree as follows:

WHEREAS, the parties anticipate the production of a substantial volume of documents and electronically stored information ("ESI") in connection with discovery in this action, including documents maintained in electronic form across numerous custodians, file shares, email systems, cloud-based repositories, and legacy storage media;

WHEREAS, this action involves breach of contract claims and counterclaims arising from a Transportation Services Agreement dated March 15, 2019 (TSA Contract Reference No. SLG-VTS-2019-0315) (the "TSA"), and discovery will necessarily encompass a broad range of business communications, financial records, operational documents, and related materials generated over a multi-year period in connection with the parties' performance, alleged breach, and termination of the TSA;

WHEREAS, the Case Management Order entered by this Court on February 17, 2023, establishes that fact discovery shall close on September 29, 2023, and expert discovery shall close on January 12, 2024, thereby requiring the parties to undertake expeditious document review and production within the time constraints imposed by the Court's scheduling order;

WHEREAS, despite the exercise of reasonable precautions, including the use of technology-assisted review ("TAR"), keyword search protocols, and manual privilege review conducted by experienced attorneys, the volume of potentially responsive documents — anticipated to number in the tens of thousands of documents comprising hundreds of thousands of pages — creates a substantial and unavoidable risk that documents and communications protected by the attorney-client privilege, the work product doctrine, or other applicable privileges or protections may be inadvertently produced to opposing counsel during the course of discovery;

WHEREAS, the parties seek entry of an order pursuant to Federal Rule of Evidence 502(d) to provide that the inadvertent production of privileged or protected materials shall not constitute a waiver of any privilege or protection as to the produced materials or as to any other materials or communications involving the same or related subject matter, whether in this case or in any other federal or state proceeding;

WHEREAS, Federal Rule of Evidence 502(d) authorizes a federal court to enter an order providing that privilege is not waived by disclosure connected with the litigation pending before the court, and that such an order is binding on all persons or entities in all federal or state proceedings, regardless of whether the order adopts the standards set forth in Federal Rule of Evidence 502(b);

WHEREAS, this Stipulation is submitted jointly by counsel for both parties — Patrick Gallagher, Esq., of Calderwood & Harkness LLP, on behalf of Defendant Stonefield Logistics Group Inc., and Jason Whitford, Esq., of Caldwell Royce & Shapiro LLP, on behalf of Plaintiff Vantor Holdings Corp. — as a reasonable and appropriate mechanism to facilitate the efficient, economical, and expeditious review and production of documents and ESI while preserving the rights of all parties and non-parties with respect to privileged and protected materials;

NOW, THEREFORE, the parties stipulate and agree, and respectfully request that the Court enter the following Order:

SECTION 1: DEFINITIONS

1.1 "Privileged Material" means any document, communication, ESI, or other material, in any form or medium, that is protected from disclosure by the attorney-client privilege, the work product doctrine (including both fact work product and opinion work product as recognized under Hickman v. Taylor, 329 U.S. 495 (1947), and Federal Rule of Civil Procedure 26(b)(3)), the common interest privilege or joint defense privilege, or any other applicable privilege or protection recognized under federal or state law. The term "Privileged Material" shall be construed broadly to encompass all materials entitled to protection from compelled disclosure under any recognized legal doctrine, including but not limited to materials reflecting confidential communications between attorney and client, mental impressions, conclusions, opinions, or legal theories of an attorney, and materials prepared in anticipation of litigation or for trial.

1.2 "Producing Party" means the party (or any non-party subject to a subpoena or other compulsory process in this action) that produces, discloses, or otherwise makes available documents or ESI in connection with discovery in this action, whether such production is made pursuant to a formal Request for Production of Documents, in response to interrogatories, as part of initial disclosures under Federal Rule of Civil Procedure 26(a), or in any other manner in connection with the discovery process.

1.3 "Receiving Party" means the party (or its counsel of record, associated attorneys, paralegals, litigation support staff, experts, consultants, vendors, or other agents) that receives documents or ESI produced or disclosed by the Producing Party in connection with discovery in this action. Where a Receiving Party has retained experts, consultants, or third-party vendors who obtain access to produced materials, such experts, consultants, or vendors shall be deemed agents of the Receiving Party for purposes of this Stipulation and Order.

1.4 "Inadvertent Production" or "Inadvertent Disclosure" means the production or disclosure of Privileged Material that was not intended by the Producing Party to be produced or disclosed, regardless of the degree of care or the nature or extent of the measures taken by the Producing Party to prevent such production. For the avoidance of doubt, a production shall be deemed "inadvertent" within the meaning of this Order if the Producing Party states in its clawback notice that the production was inadvertent; the Receiving Party shall not be permitted to challenge whether the production was in fact inadvertent, although the Receiving Party may challenge the underlying claim of privilege or protection as set forth in Section 3.3 below.

1.5 "Privilege Log" means a log identifying documents or communications withheld from production on the basis of privilege or protection, containing sufficient information to allow the Receiving Party to assess the claim of privilege or protection, including, at a minimum: (a) the date of the document or communication; (b) the author or sender; (c) the recipient(s) and any persons copied; (d) a general description of the subject matter of the document or communication (without revealing privileged content); and (e) the specific privilege or protection asserted as the basis for withholding the document or communication from production.

SECTION 2: NON-WAIVER OF PRIVILEGE UPON INADVERTENT PRODUCTION

2.1 The inadvertent production or disclosure of any Privileged Material by any party or non-party in connection with this litigation shall not constitute a waiver of any privilege or protection, in whole or in part, as to the produced material or as to any other material or communication involving the same or related subject matter. No inadvertent production shall be deemed to effect a subject-matter waiver under Federal Rule of Evidence 502(a) or under any analogous provision of state law. The protections of this provision apply with full force regardless of the number of documents inadvertently produced, the nature of the privileged content contained therein, or the length of time that elapses between the inadvertent production and the Producing Party's discovery of the error.

2.2 This non-waiver provision applies regardless of whether the Producing Party took reasonable steps to prevent the inadvertent disclosure, and regardless of whether the Producing Party took prompt steps to rectify the error after discovery thereof. The protections afforded by this Order are not dependent upon satisfaction of the multi-factor test set forth in Federal Rule of Evidence 502(b), nor upon satisfaction of any analogous standard under state law. In entering this Order, the Court exercises its independent authority under Federal Rule of Evidence 502(d), and the parties expressly acknowledge that the protections of a Rule 502(d) order are not contingent upon a showing of reasonableness or promptness.

2.3 This non-waiver provision applies to all forms of discovery production and disclosure, including but not limited to:

(a) formal document productions made in response to Requests for Production of Documents pursuant to Federal Rule of Civil Procedure 34;

(b) documents, data, and information disclosed as part of initial disclosures under Federal Rule of Civil Procedure 26(a)(1) or supplemental disclosures under Federal Rule of Civil Procedure 26(e);

(c) interrogatory responses provided pursuant to Federal Rule of Civil Procedure 33, including any documents attached thereto or referenced therein;

(d) deposition exhibits marked and used during depositions taken in this action pursuant to Federal Rule of Civil Procedure 30 or 31;

(e) documents and ESI produced by non-parties pursuant to subpoenas issued under Federal Rule of Civil Procedure 45, including, without limitation, any third-party subpoenas served in this action, such as subpoenas to Cascade Freight Systems Inc., Briarwood Trucking Co., or any other non-party;

(f) documents and ESI produced pursuant to court order or in response to any other form of compulsory process; and

(g) any other disclosures, productions, or transmissions of documents or ESI made in the course of this litigation, whether formal or informal.

2.4 The protections of this Order shall apply to all Privileged Material, including but not limited to:

(a) confidential communications between a party and its outside counsel, including but not limited to communications between Vantor and Caldwell Royce & Shapiro LLP, and communications between Stonefield and Calderwood & Harkness LLP;

(b) confidential communications between a party and its in-house counsel, including but not limited to communications with attorneys employed by or serving as general counsel, associate general counsel, or legal department staff of Vantor or Stonefield;

(c) internal attorney work product memoranda, including legal research, case assessments, litigation strategy documents, draft briefs, and settlement analyses;

(d) expert communications and materials protected from disclosure by Federal Rule of Civil Procedure 26(b)(4), including draft expert reports and communications between counsel and testifying or consulting experts;

(e) materials shared among parties or their respective counsel pursuant to any common interest agreement, joint defense agreement, or other arrangement for the sharing of privileged or protected information among persons with a common legal interest; and

(f) any other documents, communications, or materials entitled to protection from disclosure under any recognized privilege or protection doctrine.

SECTION 3: PROCEDURE UPON DISCOVERY OF INADVERTENT PRODUCTION

3.1 Notice of Clawback. Upon discovering or being informed that Privileged Material has been inadvertently produced in connection with this litigation, the Producing Party shall promptly notify the Receiving Party in writing that Privileged Material has been produced and shall identify with reasonable specificity the documents or ESI to be clawed back. Written notification by electronic mail to counsel of record for the Receiving Party shall be sufficient for purposes of this provision. The clawback notice shall identify the inadvertently produced Privileged Material by Bates number, document control number, or other unique identifier sufficient to allow the Receiving Party to locate and segregate the identified materials. The clawback notice shall also state the privilege or protection asserted with respect to each identified document or category of documents. A Producing Party's right to assert a clawback under this Section is not subject to any time limitation, and the Producing Party may assert a clawback at any point during the pendency of this action upon discovery of the inadvertent production.

3.2 Receiving Party's Obligations Upon Notice. Within five (5) business days of receiving a clawback notice under Section 3.1, the Receiving Party shall:

(a) Promptly return, sequester, or destroy all copies of the identified Privileged Material in its possession, custody, or control, including any and all copies, duplicates, excerpts, summaries, abstracts, compilations, indices, notes, or other materials derived from or reflecting the content of the inadvertently produced Privileged Material. If the Receiving Party elects to destroy copies rather than return them, the Receiving Party shall provide written certification of destruction to the Producing Party.

(b) Confirm in writing (email to counsel of record being sufficient) to the Producing Party that it has complied with the obligations set forth in this Section 3.2, including a statement specifying whether the Privileged Material was returned, sequestered, or destroyed.

(c) Not use, refer to, rely upon, or otherwise exploit the inadvertently produced Privileged Material for any purpose whatsoever, including but not limited to use as evidence in any motion, brief, memorandum of law, hearing, oral argument, deposition, deposition preparation, witness interview, trial, or any other proceeding in this action or any other action, unless and until the privilege claim has been adjudicated by the Court and the Court has ruled that the material is not privileged or protected.

(d) Take reasonable steps to retrieve, sequester, and, if necessary, destroy any copies of the inadvertently produced Privileged Material that have been provided to or accessed by any third party, including experts, consultants, co-counsel, litigation support vendors, or any other person or entity to whom the Receiving Party or its agents may have transmitted or made available the Privileged Material. The Receiving Party shall use best efforts to ensure that any such third party complies with the requirements of this Section 3.2.

3.3 Challenge to Privilege Claim. If the Receiving Party disputes the assertion of privilege or protection over any document or communication identified in a clawback notice, the Receiving Party may, within fourteen (14) calendar days of receiving the clawback notice, notify the Producing Party in writing of such dispute, identifying with reasonable specificity the documents or communications as to which the privilege claim is disputed and the basis for the dispute. Upon receipt of such notice, the parties shall promptly meet and confer in good faith in an effort to resolve the dispute without judicial intervention. If the dispute cannot be resolved through the meet-and-confer process within ten (10) business days of the Receiving Party's notice of dispute, either party may present the matter to the Court by letter motion or formal motion, as appropriate, and the Court may conduct an in camera review of the disputed materials and render a determination as to the applicability of the claimed privilege or protection. Pending resolution of any challenge to a privilege claim — whether by agreement of the parties or by ruling of the Court — the disputed Privileged Material shall remain sequestered by the Receiving Party and shall not be used, disclosed, or relied upon for any purpose.

3.4 Burden of Proof. The Producing Party shall bear the burden of establishing the applicability of the claimed privilege or protection with respect to any clawed-back document or communication. In any proceeding before the Court to resolve a dispute under Section 3.3, the Producing Party shall submit sufficient evidence, including declarations and, if necessary, the documents themselves for in camera review, to establish each element of the asserted privilege or protection. However, the assertion that the production was inadvertent is not subject to challenge under this Order. That is, the question of waiver is not at issue regardless of the circumstances of production, including without limitation the degree of care exercised by the Producing Party in reviewing documents prior to production, the time elapsed between production and the clawback notice, or the volume of privileged documents produced; only the underlying claim of privilege or protection may be challenged by the Receiving Party.

SECTION 4: PRIVILEGE LOGS

4.1 Nothing in this Stipulation and Order relieves any party of its obligation to prepare and serve a Privilege Log in accordance with Federal Rule of Civil Procedure 26(b)(5)(A), the Local Civil Rules of the United States District Court for the Southern District of New York, and any applicable directives, orders, or individual practices of the Court. Each party shall identify documents withheld from production on the basis of privilege or protection in a Privilege Log that complies with the requirements set forth in Section 1.5 of this Stipulation and Order.

4.2 The Producing Party shall serve its initial Privilege Log concurrently with, or within fourteen (14) calendar days of, its initial document production in this action. To the extent that additional documents are identified and withheld on the basis of privilege or protection in connection with subsequent or supplemental productions, supplemental privilege logs shall be served concurrently with, or within fourteen (14) calendar days of, each such supplemental production.

4.3 If a Producing Party claws back inadvertently produced Privileged Material pursuant to Section 3 of this Stipulation and Order, the Producing Party shall add the clawed-back material to its Privilege Log within ten (10) business days of serving the clawback notice under Section 3.1. The Privilege Log entry for clawed-back material shall include all of the information specified in Section 1.5 and shall further indicate that the document was initially produced and subsequently clawed back, together with the date of the clawback notice.

SECTION 5: SCOPE AND APPLICABILITY

5.1 Binding on All Persons and Entities. Pursuant to Federal Rule of Evidence 502(d), this Order is entered by the Court and is binding on all persons or entities, whether or not they are parties to this litigation, in all federal or state proceedings. No production or disclosure of Privileged Material in connection with this litigation, whether inadvertent or intentional, shall operate as a waiver of any privilege or protection in this action or in any other federal or state proceeding. The parties and any non-parties who produce documents or ESI in this action may invoke this Order as a basis for asserting that no waiver has occurred in any subsequent proceeding in any forum.

5.2 Applicability to Non-Parties. This Order applies with equal force to documents and ESI produced by non-parties in response to subpoenas, requests for voluntary production, or other compulsory process issued in this action. Non-parties may invoke the protections of this Order to the same extent as the parties to this litigation. To the extent that any non-party produces Privileged Material in connection with this action, whether inadvertently or otherwise, such production shall not constitute a waiver of any privilege or protection, and the non-party or any party may assert a clawback under the procedures set forth in Section 3 of this Order.

5.3 No Effect on Pre-Existing Waivers. This Order does not apply to, and shall not be construed to reverse or negate, any waiver of privilege that may have occurred prior to the commencement of this action or independent of discovery in this action. Nothing in this Order shall be construed to restore any privilege or protection that was waived prior to the date of this Order through conduct unrelated to discovery in this litigation.

5.4 Survival. The provisions of this Stipulation and Order shall survive the termination of this litigation, including any settlement, voluntary dismissal pursuant to Federal Rule of Civil Procedure 41, involuntary dismissal, entry of final judgment, or any appeal therefrom. The protections afforded by this Order shall remain in full force and effect in perpetuity and may be invoked by any party or non-party in any subsequent proceeding in any forum.

SECTION 6: NO ADMISSION

6.1 Nothing in this Stipulation and Order shall be construed as an admission by any party that any particular document, communication, or category of documents or communications is or is not privileged or protected from disclosure. The entry into this Stipulation and Order does not constitute an acknowledgment by either party that any specific documents will be withheld, clawed back, or produced in the course of discovery.

6.2 Nothing in this Stipulation and Order shall be construed as an agreement by any party to waive any objection to the production of any document or ESI on any ground, including but not limited to objections based on relevance, proportionality under Federal Rule of Civil Procedure 26(b)(1), undue burden, duplicativeness, or any other basis recognized by the Federal Rules of Civil Procedure or applicable law.

SECTION 7: RESERVATION OF RIGHTS

7.1 The parties expressly reserve all rights to challenge the adequacy or sufficiency of any privilege log entry served by any other party, and to seek an order compelling the production of any document or communication as to which a claim of privilege or protection is asserted, including through an application for in camera review of any withheld or clawed-back material by the Court.

7.2 The parties expressly reserve all rights to assert any privilege or protection as to any document, communication, or ESI, whether or not such document, communication, or ESI has been included on a privilege log, at any time during this litigation. The failure to include a document on an initial or supplemental privilege log shall not constitute a waiver of any privilege or protection, provided that the Producing Party supplements its privilege log upon discovery of the omission.

SECTION 8: MODIFICATION

8.1 This Stipulation and Order may be modified only by further written stipulation of the parties approved by the Court, or by Order of the Court upon motion by any party for good cause shown. Any such modification shall be prospective only and shall not affect the protections afforded by this Order with respect to any production or disclosure that occurred prior to the date of such modification, unless the Court expressly orders otherwise.

AGREED AND STIPULATED:

Dated: February 15, 2023

CALDERWOOD & HARKNESS LLP

By: ________

Patrick Gallagher, Esq. Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166 Telephone: (212) 455-3200

Email: pgallagher@calderwoodharkness.com

Counsel for Defendant Stonefield Logistics Group Inc.

CALDWELL ROYCE & SHAPIRO LLP

By: ________

Jason Whitford, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 837-6400

Email: jwhitford@caldwellroyce.com

Counsel for Plaintiff Vantor Holdings Corp.

[PROPOSED] ORDER

The foregoing Stipulation Regarding Assertion of Privilege and Protection Against Waiver Pursuant to Federal Rule of Evidence 502(d) having been submitted to the Court jointly by counsel for Plaintiff Vantor Holdings Corp. and Defendant Stonefield Logistics Group Inc., and the Court having reviewed the Stipulation and the representations of counsel therein, and finding good cause therefor:

IT IS HEREBY ORDERED that the Stipulation Regarding Assertion of Privilege and Protection Against Waiver Pursuant to Federal Rule of Evidence 502(d), as set forth above, is APPROVED and entered as an Order of this Court.

IT IS FURTHER ORDERED that, pursuant to Federal Rule of Evidence 502(d), the inadvertent production of privileged or protected materials in connection with this litigation shall not constitute a waiver of any privilege or protection in this case or in any other federal or state proceeding. This Order is entered pursuant to the Court's authority under Federal Rule of Evidence 502(d) and is binding on all persons or entities in all federal or state proceedings, regardless of whether those persons or entities are parties to this litigation.

IT IS FURTHER ORDERED that this Order is entered as part of, and shall be read in conjunction with, the Case Management Order dated February 17, 2023, in this action.

SO ORDERED.

Dated: February 17, 2023 New York, New York

________________________________________

HON. MARGARET T. CALLOWAY United States District Judge Southern District of New York

VANTOR HOLDINGS CORP.,

Plaintiff,

Case No. 22-cv-07841

Hon. Margaret T. Calloway, U.S.D.J.

STONEFIELD LOGISTICS GROUP INC.,

Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
STIPULATION AND [PROPOSED] ORDER REGARDING ASSERTION OF PRIVILEGE AND PROTECTION AGAINST WAIVER PURSUANT TO FEDERAL RULE OF EVIDENCE 502(d)
PREAMBLE
Plaintiff Vantor Holdings Corp. ("Vantor" or "Plaintiff"), by and through its counsel of record, Caldwell Royce & Shapiro LLP, 1 Liberty Plaza, 22nd Floor, New York, New York 10006, and Defendant Stonefield Logistics Group Inc. ("Stonefield" or "Defendant"), by and through its counsel of record, Calderwood & Harkness LLP, 200 Park Avenue, 38th Floor, New York, New York 10166, hereby stipulate and agree as follows:
WHEREAS, the parties anticipate the production of a substantial volume of documents and electronically stored information ("ESI") in connection with discovery in this action, including documents maintained in electronic form across numerous custodians, file shares, email systems, cloud-based repositories, and legacy storage media;
WHEREAS, this action involves breach of contract claims and counterclaims arising from a Transportation Services Agreement dated March 15, 2019 (TSA Contract Reference No. SLG-VTS-2019-0315) (the "TSA"), and discovery will necessarily encompass a broad range of business communications, financial records, operational documents, and related materials generated over a multi-year period in connection with the parties' performance, alleged breach, and termination of the TSA;
WHEREAS, the Case Management Order entered by this Court on February 17, 2023, establishes that fact discovery shall close on September 29, 2023, and expert discovery shall close on January 12, 2024, thereby requiring the parties to undertake expeditious document review and production within the time constraints imposed by the Court's scheduling order;
WHEREAS, despite the exercise of reasonable precautions, including the use of technology-assisted review ("TAR"), keyword search protocols, and manual privilege review conducted by experienced attorneys, the volume of potentially responsive documents — anticipated to number in the tens of thousands of documents comprising hundreds of thousands of pages — creates a substantial and unavoidable risk that documents and communications protected by the attorney-client privilege, the work product doctrine, or other applicable privileges or protections may be inadvertently produced to opposing counsel during the course of discovery;
WHEREAS, the parties seek entry of an order pursuant to Federal Rule of Evidence 502(d) to provide that the inadvertent production of privileged or protected materials shall not constitute a waiver of any privilege or protection as to the produced materials or as to any other materials or communications involving the same or related subject matter, whether in this case or in any other federal or state proceeding;
WHEREAS, Federal Rule of Evidence 502(d) authorizes a federal court to enter an order providing that privilege is not waived by disclosure connected with the litigation pending before the court, and that such an order is binding on all persons or entities in all federal or state proceedings, regardless of whether the order adopts the standards set forth in Federal Rule of Evidence 502(b);
WHEREAS, this Stipulation is submitted jointly by counsel for both parties — Patrick Gallagher, Esq., of Calderwood & Harkness LLP, on behalf of Defendant Stonefield Logistics Group Inc., and Jason Whitford, Esq., of Caldwell Royce & Shapiro LLP, on behalf of Plaintiff Vantor Holdings Corp. — as a reasonable and appropriate mechanism to facilitate the efficient, economical, and expeditious review and production of documents and ESI while preserving the rights of all parties and non-parties with respect to privileged and protected materials;
NOW, THEREFORE, the parties stipulate and agree, and respectfully request that the Court enter the following Order:
SECTION 1: DEFINITIONS
1.1 "Privileged Material" means any document, communication, ESI, or other material, in any form or medium, that is protected from disclosure by the attorney-client privilege, the work product doctrine (including both fact work product and opinion work product as recognized under Hickman v. Taylor, 329 U.S. 495 (1947), and Federal Rule of Civil Procedure 26(b)(3)), the common interest privilege or joint defense privilege, or any other applicable privilege or protection recognized under federal or state law. The term "Privileged Material" shall be construed broadly to encompass all materials entitled to protection from compelled disclosure under any recognized legal doctrine, including but not limited to materials reflecting confidential communications between attorney and client, mental impressions, conclusions, opinions, or legal theories of an attorney, and materials prepared in anticipation of litigation or for trial.
1.2 "Producing Party" means the party (or any non-party subject to a subpoena or other compulsory process in this action) that produces, discloses, or otherwise makes available documents or ESI in connection with discovery in this action, whether such production is made pursuant to a formal Request for Production of Documents, in response to interrogatories, as part of initial disclosures under Federal Rule of Civil Procedure 26(a), or in any other manner in connection with the discovery process.
1.3 "Receiving Party" means the party (or its counsel of record, associated attorneys, paralegals, litigation support staff, experts, consultants, vendors, or other agents) that receives documents or ESI produced or disclosed by the Producing Party in connection with discovery in this action. Where a Receiving Party has retained experts, consultants, or third-party vendors who obtain access to produced materials, such experts, consultants, or vendors shall be deemed agents of the Receiving Party for purposes of this Stipulation and Order.
1.4 "Inadvertent Production" or "Inadvertent Disclosure" means the production or disclosure of Privileged Material that was not intended by the Producing Party to be produced or disclosed, regardless of the degree of care or the nature or extent of the measures taken by the Producing Party to prevent such production. For the avoidance of doubt, a production shall be deemed "inadvertent" within the meaning of this Order if the Producing Party states in its clawback notice that the production was inadvertent; the Receiving Party shall not be permitted to challenge whether the production was in fact inadvertent, although the Receiving Party may challenge the underlying claim of privilege or protection as set forth in Section 3.3 below.
1.5 "Privilege Log" means a log identifying documents or communications withheld from production on the basis of privilege or protection, containing sufficient information to allow the Receiving Party to assess the claim of privilege or protection, including, at a minimum: (a) the date of the document or communication; (b) the author or sender; (c) the recipient(s) and any persons copied; (d) a general description of the subject matter of the document or communication (without revealing privileged content); and (e) the specific privilege or protection asserted as the basis for withholding the document or communication from production.
SECTION 2: NON-WAIVER OF PRIVILEGE UPON INADVERTENT PRODUCTION
2.1 The inadvertent production or disclosure of any Privileged Material by any party or non-party in connection with this litigation shall not constitute a waiver of any privilege or protection, in whole or in part, as to the produced material or as to any other material or communication involving the same or related subject matter. No inadvertent production shall be deemed to effect a subject-matter waiver under Federal Rule of Evidence 502(a) or under any analogous provision of state law. The protections of this provision apply with full force regardless of the number of documents inadvertently produced, the nature of the privileged content contained therein, or the length of time that elapses between the inadvertent production and the Producing Party's discovery of the error.
2.2 This non-waiver provision applies regardless of whether the Producing Party took reasonable steps to prevent the inadvertent disclosure, and regardless of whether the Producing Party took prompt steps to rectify the error after discovery thereof. The protections afforded by this Order are not dependent upon satisfaction of the multi-factor test set forth in Federal Rule of Evidence 502(b), nor upon satisfaction of any analogous standard under state law. In entering this Order, the Court exercises its independent authority under Federal Rule of Evidence 502(d), and the parties expressly acknowledge that the protections of a Rule 502(d) order are not contingent upon a showing of reasonableness or promptness.
2.3 This non-waiver provision applies to all forms of discovery production and disclosure, including but not limited to:
(a) formal document productions made in response to Requests for Production of Documents pursuant to Federal Rule of Civil Procedure 34;
(b) documents, data, and information disclosed as part of initial disclosures under Federal Rule of Civil Procedure 26(a)(1) or supplemental disclosures under Federal Rule of Civil Procedure 26(e);
(c) interrogatory responses provided pursuant to Federal Rule of Civil Procedure 33, including any documents attached thereto or referenced therein;
(d) deposition exhibits marked and used during depositions taken in this action pursuant to Federal Rule of Civil Procedure 30 or 31;
(e) documents and ESI produced by non-parties pursuant to subpoenas issued under Federal Rule of Civil Procedure 45, including, without limitation, any third-party subpoenas served in this action, such as subpoenas to Cascade Freight Systems Inc., Briarwood Trucking Co., or any other non-party;
(f) documents and ESI produced pursuant to court order or in response to any other form of compulsory process; and
(g) any other disclosures, productions, or transmissions of documents or ESI made in the course of this litigation, whether formal or informal.
2.4 The protections of this Order shall apply to all Privileged Material, including but not limited to:
(a) confidential communications between a party and its outside counsel, including but not limited to communications between Vantor and Caldwell Royce & Shapiro LLP, and communications between Stonefield and Calderwood & Harkness LLP;
(b) confidential communications between a party and its in-house counsel, including but not limited to communications with attorneys employed by or serving as general counsel, associate general counsel, or legal department staff of Vantor or Stonefield;
(c) internal attorney work product memoranda, including legal research, case assessments, litigation strategy documents, draft briefs, and settlement analyses;
(d) expert communications and materials protected from disclosure by Federal Rule of Civil Procedure 26(b)(4), including draft expert reports and communications between counsel and testifying or consulting experts;
(e) materials shared among parties or their respective counsel pursuant to any common interest agreement, joint defense agreement, or other arrangement for the sharing of privileged or protected information among persons with a common legal interest; and
(f) any other documents, communications, or materials entitled to protection from disclosure under any recognized privilege or protection doctrine.
SECTION 3: PROCEDURE UPON DISCOVERY OF INADVERTENT PRODUCTION
3.1 Notice of Clawback. Upon discovering or being informed that Privileged Material has been inadvertently produced in connection with this litigation, the Producing Party shall promptly notify the Receiving Party in writing that Privileged Material has been produced and shall identify with reasonable specificity the documents or ESI to be clawed back. Written notification by electronic mail to counsel of record for the Receiving Party shall be sufficient for purposes of this provision. The clawback notice shall identify the inadvertently produced Privileged Material by Bates number, document control number, or other unique identifier sufficient to allow the Receiving Party to locate and segregate the identified materials. The clawback notice shall also state the privilege or protection asserted with respect to each identified document or category of documents. A Producing Party's right to assert a clawback under this Section is not subject to any time limitation, and the Producing Party may assert a clawback at any point during the pendency of this action upon discovery of the inadvertent production.
3.2 Receiving Party's Obligations Upon Notice. Within five (5) business days of receiving a clawback notice under Section 3.1, the Receiving Party shall:
(a) Promptly return, sequester, or destroy all copies of the identified Privileged Material in its possession, custody, or control, including any and all copies, duplicates, excerpts, summaries, abstracts, compilations, indices, notes, or other materials derived from or reflecting the content of the inadvertently produced Privileged Material. If the Receiving Party elects to destroy copies rather than return them, the Receiving Party shall provide written certification of destruction to the Producing Party.
(b) Confirm in writing (email to counsel of record being sufficient) to the Producing Party that it has complied with the obligations set forth in this Section 3.2, including a statement specifying whether the Privileged Material was returned, sequestered, or destroyed.
(c) Not use, refer to, rely upon, or otherwise exploit the inadvertently produced Privileged Material for any purpose whatsoever, including but not limited to use as evidence in any motion, brief, memorandum of law, hearing, oral argument, deposition, deposition preparation, witness interview, trial, or any other proceeding in this action or any other action, unless and until the privilege claim has been adjudicated by the Court and the Court has ruled that the material is not privileged or protected.
(d) Take reasonable steps to retrieve, sequester, and, if necessary, destroy any copies of the inadvertently produced Privileged Material that have been provided to or accessed by any third party, including experts, consultants, co-counsel, litigation support vendors, or any other person or entity to whom the Receiving Party or its agents may have transmitted or made available the Privileged Material. The Receiving Party shall use best efforts to ensure that any such third party complies with the requirements of this Section 3.2.
3.3 Challenge to Privilege Claim. If the Receiving Party disputes the assertion of privilege or protection over any document or communication identified in a clawback notice, the Receiving Party may, within fourteen (14) calendar days of receiving the clawback notice, notify the Producing Party in writing of such dispute, identifying with reasonable specificity the documents or communications as to which the privilege claim is disputed and the basis for the dispute. Upon receipt of such notice, the parties shall promptly meet and confer in good faith in an effort to resolve the dispute without judicial intervention. If the dispute cannot be resolved through the meet-and-confer process within ten (10) business days of the Receiving Party's notice of dispute, either party may present the matter to the Court by letter motion or formal motion, as appropriate, and the Court may conduct an in camera review of the disputed materials and render a determination as to the applicability of the claimed privilege or protection. Pending resolution of any challenge to a privilege claim — whether by agreement of the parties or by ruling of the Court — the disputed Privileged Material shall remain sequestered by the Receiving Party and shall not be used, disclosed, or relied upon for any purpose.
3.4 Burden of Proof. The Producing Party shall bear the burden of establishing the applicability of the claimed privilege or protection with respect to any clawed-back document or communication. In any proceeding before the Court to resolve a dispute under Section 3.3, the Producing Party shall submit sufficient evidence, including declarations and, if necessary, the documents themselves for in camera review, to establish each element of the asserted privilege or protection. However, the assertion that the production was inadvertent is not subject to challenge under this Order. That is, the question of waiver is not at issue regardless of the circumstances of production, including without limitation the degree of care exercised by the Producing Party in reviewing documents prior to production, the time elapsed between production and the clawback notice, or the volume of privileged documents produced; only the underlying claim of privilege or protection may be challenged by the Receiving Party.
SECTION 4: PRIVILEGE LOGS
4.1 Nothing in this Stipulation and Order relieves any party of its obligation to prepare and serve a Privilege Log in accordance with Federal Rule of Civil Procedure 26(b)(5)(A), the Local Civil Rules of the United States District Court for the Southern District of New York, and any applicable directives, orders, or individual practices of the Court. Each party shall identify documents withheld from production on the basis of privilege or protection in a Privilege Log that complies with the requirements set forth in Section 1.5 of this Stipulation and Order.
4.2 The Producing Party shall serve its initial Privilege Log concurrently with, or within fourteen (14) calendar days of, its initial document production in this action. To the extent that additional documents are identified and withheld on the basis of privilege or protection in connection with subsequent or supplemental productions, supplemental privilege logs shall be served concurrently with, or within fourteen (14) calendar days of, each such supplemental production.
4.3 If a Producing Party claws back inadvertently produced Privileged Material pursuant to Section 3 of this Stipulation and Order, the Producing Party shall add the clawed-back material to its Privilege Log within ten (10) business days of serving the clawback notice under Section 3.1. The Privilege Log entry for clawed-back material shall include all of the information specified in Section 1.5 and shall further indicate that the document was initially produced and subsequently clawed back, together with the date of the clawback notice.
SECTION 5: SCOPE AND APPLICABILITY
5.1 Binding on All Persons and Entities. Pursuant to Federal Rule of Evidence 502(d), this Order is entered by the Court and is binding on all persons or entities, whether or not they are parties to this litigation, in all federal or state proceedings. No production or disclosure of Privileged Material in connection with this litigation, whether inadvertent or intentional, shall operate as a waiver of any privilege or protection in this action or in any other federal or state proceeding. The parties and any non-parties who produce documents or ESI in this action may invoke this Order as a basis for asserting that no waiver has occurred in any subsequent proceeding in any forum.
5.2 Applicability to Non-Parties. This Order applies with equal force to documents and ESI produced by non-parties in response to subpoenas, requests for voluntary production, or other compulsory process issued in this action. Non-parties may invoke the protections of this Order to the same extent as the parties to this litigation. To the extent that any non-party produces Privileged Material in connection with this action, whether inadvertently or otherwise, such production shall not constitute a waiver of any privilege or protection, and the non-party or any party may assert a clawback under the procedures set forth in Section 3 of this Order.
5.3 No Effect on Pre-Existing Waivers. This Order does not apply to, and shall not be construed to reverse or negate, any waiver of privilege that may have occurred prior to the commencement of this action or independent of discovery in this action. Nothing in this Order shall be construed to restore any privilege or protection that was waived prior to the date of this Order through conduct unrelated to discovery in this litigation.
5.4 Survival. The provisions of this Stipulation and Order shall survive the termination of this litigation, including any settlement, voluntary dismissal pursuant to Federal Rule of Civil Procedure 41, involuntary dismissal, entry of final judgment, or any appeal therefrom. The protections afforded by this Order shall remain in full force and effect in perpetuity and may be invoked by any party or non-party in any subsequent proceeding in any forum.
SECTION 6: NO ADMISSION
6.1 Nothing in this Stipulation and Order shall be construed as an admission by any party that any particular document, communication, or category of documents or communications is or is not privileged or protected from disclosure. The entry into this Stipulation and Order does not constitute an acknowledgment by either party that any specific documents will be withheld, clawed back, or produced in the course of discovery.
6.2 Nothing in this Stipulation and Order shall be construed as an agreement by any party to waive any objection to the production of any document or ESI on any ground, including but not limited to objections based on relevance, proportionality under Federal Rule of Civil Procedure 26(b)(1), undue burden, duplicativeness, or any other basis recognized by the Federal Rules of Civil Procedure or applicable law.
SECTION 7: RESERVATION OF RIGHTS
7.1 The parties expressly reserve all rights to challenge the adequacy or sufficiency of any privilege log entry served by any other party, and to seek an order compelling the production of any document or communication as to which a claim of privilege or protection is asserted, including through an application for in camera review of any withheld or clawed-back material by the Court.
7.2 The parties expressly reserve all rights to assert any privilege or protection as to any document, communication, or ESI, whether or not such document, communication, or ESI has been included on a privilege log, at any time during this litigation. The failure to include a document on an initial or supplemental privilege log shall not constitute a waiver of any privilege or protection, provided that the Producing Party supplements its privilege log upon discovery of the omission.
SECTION 8: MODIFICATION
8.1 This Stipulation and Order may be modified only by further written stipulation of the parties approved by the Court, or by Order of the Court upon motion by any party for good cause shown. Any such modification shall be prospective only and shall not affect the protections afforded by this Order with respect to any production or disclosure that occurred prior to the date of such modification, unless the Court expressly orders otherwise.
AGREED AND STIPULATED:
Dated: February 15, 2023
CALDERWOOD & HARKNESS LLP
By: ________
Patrick Gallagher, Esq. Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166 Telephone: (212) 455-3200
Email: pgallagher@calderwoodharkness.com
Counsel for Defendant Stonefield Logistics Group Inc.
CALDWELL ROYCE & SHAPIRO LLP
By: ________
Jason Whitford, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 837-6400
Email: jwhitford@caldwellroyce.com
Counsel for Plaintiff Vantor Holdings Corp.
[PROPOSED] ORDER
The foregoing Stipulation Regarding Assertion of Privilege and Protection Against Waiver Pursuant to Federal Rule of Evidence 502(d) having been submitted to the Court jointly by counsel for Plaintiff Vantor Holdings Corp. and Defendant Stonefield Logistics Group Inc., and the Court having reviewed the Stipulation and the representations of counsel therein, and finding good cause therefor:
IT IS HEREBY ORDERED that the Stipulation Regarding Assertion of Privilege and Protection Against Waiver Pursuant to Federal Rule of Evidence 502(d), as set forth above, is APPROVED and entered as an Order of this Court.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Evidence 502(d), the inadvertent production of privileged or protected materials in connection with this litigation shall not constitute a waiver of any privilege or protection in this case or in any other federal or state proceeding. This Order is entered pursuant to the Court's authority under Federal Rule of Evidence 502(d) and is binding on all persons or entities in all federal or state proceedings, regardless of whether those persons or entities are parties to this litigation.
IT IS FURTHER ORDERED that this Order is entered as part of, and shall be read in conjunction with, the Case Management Order dated February 17, 2023, in this action.
SO ORDERED.
Dated: February 17, 2023 New York, New York
________________________________________
HON. MARGARET T. CALLOWAY United States District Judge Southern District of New York
VANTOR HOLDINGS CORP.,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
Case No. 22-cv-07841
v.
Hon. Margaret T. Calloway, U.S.D.J.
STONEFIELD LOGISTICS GROUP INC.,
<!-- indent:2 -->Defendant.<!-- /indent -->