CLAWBACK AGREEMENT AND FEDERAL RULE OF EVIDENCE 502(d)
- Date
- 2025-04-30
Summary
A Clawback Agreement and Federal Rule of Evidence 502(d) Order entered April 30, 2025 as Document 84 in United States ex rel. Paul Pietschner v. Kathryn Petralia, Robert Frohwein and Spencer Robinson, Case 4:21-cv-00110-SDJ, in the U.S. District Court for the Eastern District of Texas, Sherman Division. The order provides that inadvertent production of privileged or protected documents does not waive privilege in this or any other proceeding, and states that it displaces Fed. R. Evid. 502(b)(2). It sets procedures for privilege notices, return or destruction of documents, meeting and conferring under Local Rule CV-7(h), and sealed motions for judicial determination of disputed claims. It is signed by United States District Judge Sean D. Jordan and runs four pages.
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Case 4:21-cv-00110-SDJ Document 84 Filed 04/30/25 Page 1 of 4 PageID #: 881
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
)
UNITED STATES OF AMERICA ex rel. )
PAUL PIETSCHNER, )
)
Plaintiff, )
)
v. ) CIVIL NO. 4:21-CV-110-SDJ
)
KATHRYN PETRALIA; ROBERT )
FROHWEIN; and SPENCER ROBINSON, )
)
Defendants. )
)
)
CLAWBACK AGREEMENT AND FEDERAL RULE OF EVIDENCE 502(d)
ORDER
The Court hereby orders pursuant to Rule 502(d) of the Federal Rules of Evidence, Rule
26(b) of the Federal Rules of Civil Procedure, and the Court’s inherent authority that the
inadvertent production of a document, or part of a document, where the inadvertently produced
material is not subsequently used by the producing party in this proceeding, shall not constitute a
waiver of any privilege or protection as to any portion of that document, or as to any undisclosed
privileged or protected communications or information concerning the same subject matter, in this
or in any other proceeding. This Order applies to attorney-client privilege, work-product
protection as defined by Federal Rule of Civil Procedure Rule 26(b), governmental privileges, or
any other applicable privilege. Nothing in this Order shall constitute an admission that any
document disclosed in this litigation is subject to any of the foregoing privileges or protections, or
that any party is entitled to raise or assert such privileges. Additionally, nothing in this Order shall
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Case 4:21-cv-00110-SDJ Document 84 Filed 04/30/25 Page 2 of 4 PageID #: 882
prohibit parties from withholding from production any document covered by any applicable
privilege or other protection.
The parties intend that this stipulated order shall displace the provisions of Fed. R. Evid.
502(b)(2). That is, the inadvertent disclosure of privileged or protected information, as described
above, in this litigation shall not constitute a subject matter waiver of the privilege or protection in
this or any other federal or state proceeding, regardless of the standard of care or specific steps
taken to prevent disclosure, so long as the disclosure was not intentional and occurs despite some
degree of screening to prevent disclosure (such as electronic, keyword-based screening).
However, nothing in this Order shall limit a party’s right to conduct a pre-production review of
documents as it deems appropriate.
I. DEFINITIONS
1. “Document,” as used herein, includes all items listed in Fed. R. Civ. P. 34(a)(1)(A)
and (B).
2. “Documents Produced,” as used herein, includes all documents made available for
review or produced in any manner during this litigation.
II. PROCEDURES
The procedures applicable to a claim of privilege on a produced document and the
resolution thereof shall be as follows:
1. If a party discovers a document, or part thereof, produced by another party or the
other party’s contractor, that the party knows, or reasonably should know, is privileged or
otherwise protected, the receiving party shall promptly notify the producing party and must then
promptly return the document or destroy it and certify to the producing party that the document
and any notes taken about the document has been destroyed. The receiving party shall also
promptly identify, sequester, and destroy any notes taken about the document. Nothing in this
Order is intended to shift the burden to identify privileged and protected documents from the
producing party to the receiving party.
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Case 4:21-cv-00110-SDJ Document 84 Filed 04/30/25 Page 3 of 4 PageID #: 883
2. If the producing party determines that a document produced, or part thereof, is
subject to a privilege or privileges, the producing party shall give the receiving party notice of the
claim of privilege (“privilege notice”).
3. The privilege notice must contain information sufficient to identify the document
including, if applicable, a Bates number as well as identification of the privilege asserted and its
basis.
4. Upon receiving the privilege notice, if the receiving party agrees with the privilege
assertion made, the receiving party must promptly return the specified document(s) and any copies
or destroy the document(s) and copies and certify to the producing party that the document(s) and
copies have been destroyed. The receiving party must sequester and destroy any notes taken about
the document. If a receiving party disclosed the document or information specified in the notice
before receiving the notice, it must take reasonable steps to retrieve it, and so notify the producing
party of the disclosure and its efforts to retrieve the document or information.
5. Upon receiving the privilege notice, if the receiving party wishes to dispute a
producing party’s privilege notice, the receiving party shall promptly meet and confer with the
producing party pursuant to Local Rule CV-7(h). The document(s) shall be sequestered
immediately upon receiving the privilege notice and not be used by the receiving party in the
litigation (e.g. filed as an exhibit to a pleading or motion; used in deposition or during trial) while
the dispute is pending. If the parties are unable to come to an agreement about the privilege
assertions made in the privilege notice, the receiving party shall initiate a discovery dispute in
accordance with any Order Governing Proceedings entered by the Court in this action, which may
require a telephone conference with the Court regarding the subject matter of the dispute prior to
filing any motion. If the Court orders the parties to file a motion, the receiving party shall file a
sealed motion for a judicial determination of the privilege claim.
6. Pending resolution of the judicial determination, the parties shall both preserve and
refrain from using the challenged information for any purpose and shall not disclose it to any
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Case 4:21-cv-00110-SDJ Document 84 Filed 04/30/25 Page 4 of 4 PageID #: 884
person other than those required by law to be served with a copy of the sealed motion. The
receiving party’s motion challenging the assertion must not publicly disclose the information
claimed to be privileged. Any further briefing by any party shall also not publicly disclose the
information claimed to be privileged if the privilege claim remains unresolved or is resolved in the
producing party’s favor.
7. If a document must be returned or destroyed as determined by the process above,
that document, along with copies and notes about the document, that exist on back-up tapes,
systems, or similar storage need not be immediately deleted or destroyed, and, instead, such
.
materials shall be overwritten and destroyed in the normal course of business. Until they are
overwritten in the normal course of business, the receiving party will take reasonable steps to limit
access, if any, to the persons necessary to conduct routine IT and cybersecurity functions.
8. Nothing in this Order shall prohibit parties from withholding from review and/or
production any document covered by any privilege or other protection properly claimed, except
where a privilege claim over such document(s) is adjudicated and denied by the Court.
9. The provisions of this Order shall continue to be binding after the termination of
this action unless otherwise ordered.
So ORDERED and SIGNED this 30th day of April, 2025.
____________________________________
SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE
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