The parties to the above-captioned action, Plaintiffs SkyRiver Technologies, LLC and Innovative Interfaces, Inc., and Defendant OCLC Online Computer Library Center, Inc., are engaged in the production and exchange of documents, including electronically stored information, in responding to discovery requests. All parties acknowledge that, while each party is making and will continue to make diligent efforts to identify and withhold from production any and all documents protected by the work-product doctrine and/or the attorney-client privilege (“Privileged Document(s)”), given the volume and nature of the material that may be exchanged, a possibility exists that Privileged Documents may be produced inadvertently.
Accordingly, pursuant to Fed. R. Evid. 502(d) and with the agreement of the parties, the Court orders as follows:
- A party who produces any privileged document without intending to waive the claim of privilege associated with such document may, within ten (10) days after the producing party actually discovers that such inadvertent production occurred, amend its discovery response and notify the other party that such document was inadvertently produced and should have been withheld as privileged.
- Once the producing party provides such notice to the requesting party, the requesting party must (1) promptly return the specified document and any copies thereof; (2) destroy, and certify such destruction to the producing party, any notes or any other documents it created that reflect the contents of the specified document; and (3) refrain from disclosing the substance of such specified document to any third-party, including the Court. In the event of inadvertent disclosure of privileged documents and upon timely notice by the producing party, as provided in paragraph 1, the requesting party shall have the obligation to retrieve any such documents from third parties retained by the requesting party.
- Such inadvertent disclosure of a privileged document shall not be deemed a waiver with respect to that document or other documents involving similar subject matter.
- By complying with these obligations, the requesting party does not waive any right to challenge the assertion of privilege and request an order of the court denying such privilege. In the event of a challenge to the claim of privilege, the requesting party may seek to compel production of the document.
Dated this 23d day of March, 2011.
