Wilbur-Ellis Company LLC v. Jens

                       UNITED STATES DISTRICT COURT 
                        DISTRICT OF SOUTH DAKOTA 
                            SOUTHERN DIVISION 

WILBUR-ELLIS COMPANY LLC, 
                                                    4:23-CV-04104-LLP 
      Plaintiff, 
                                                         ORDER 
      vs. 
BRETT JENS, SHANE FASTNACHT, 
PHYLICIA HOFFMAN, WES HOTCHKISS, 
and J.R. SIMPLOT COMPANY, 
      Defendants. 
     Plaintiff and the individual defendants in this action have filed a Stipulation Regarding 
FRE 502(D) and (E) Clawback Order and Motion for Entry of Same.  (Doc. 205.)  The purpose 
of the Stipulation is to protect and preserve privileged documents that are inadvertently produced 
in discovery by foreclosing any arguments that the attorney-client privilege or the work-product 
protections were waived by the inadvertent production of the documents. 
     Federal Rule of Evidence 502 is entitled “Attorney-Client Privilege and Work Product; 
Limitations  on  Waiver.”  Fed.  R.  Evid.  502.  Its  provisions  “apply  .  .  .  to  disclosure  of a 
communication  or  information  covered  by  the  attorney-client  privilege  or  work-product 
protection.”  Id.  Rule 502(d) states “[a] federal court may order that the privilege or protection is 
not waived by disclosure connected with the litigation pending before the court - - in which event 
the disclosure is also not a waiver in any other federal or state proceeding.” Jd.  Congress’ intent 
regarding subsection (d) of Rule 502 was to allow “parties to conduct and respond to discovery 
expeditiously,  without  the  need  for  exhaustive  pre-production  privilege  reviews,  while  still 
preserving each party’s right to assert the privilege to preclude use in litigation of information 
disclosed in such discovery.”  Fed. R. Evid. 502 addendum to advisory committee notes. 
     Rule 502 contemplates issuance of the court order requested by the parties in this case. See 
Fed.R.Evid. 502(d) & (e). The Advisory Committee Notes to Rule 502 state, in relevant part: 

     [T]he court order may provide for return of documents without waiver irrespective of the 
     care taken by the disclosing party; the rule contemplates enforcement of “claw-back” and 
     “quick peek” arrangements as a way to avoid the excessive costs of pre-production review 
     for privilege and work product. See Zubulake v.  UBS Warburg LLC, 

216 F.R.D. 280, 290

 
     (S.D.N.Y.2003) (noting that parties may enter into “so-called ‘claw-back’ agreements that 
     allow the parties to forego privilege review altogether in favor of an agreement to return 
     inadvertently produced privilege documents”). The rule provides a party with a predictable 
    protection from a court order—predictability that is needed to allow the party to plan in 
     advance to limit the prohibitive costs of privilege and work product review and retention. 
Fed. R. Evid. 502 advisory committee notes.  Accordingly, after consideration of the Stipulation, 
     IT IS ORDERED that the motion for entry of the Stipulation is granted, and the terms 
contained in the Stipulation are hereby adopted.  (Doc. 205.) 

     Dated this 7th day of April, 2025. 

                                  BY THE COURT: 

                                  Lawrence L. Piersol 
                                  United States District  Judge