United States District Court, D. Colorado
JOHNS MANVILLE CORPORATION, a Delaware corporation, and JOHNS MANVILLE, a Delaware corporation, Plaintiffs,
KNAUF INSULATION, LLC, a Delaware corporation, WALTER A. JOHNSON, individually, and KNAUF INSULATION GMBH, a German corporation, Defendants.
David E. Sipiora Miranda C. Rogers Kevin M. Bell KILPATRICK, TOWNSEND & STOCKTON LLP Attorneys for Plaintiffs Johns Manville Corporation and Johns Manville.
Daniel J. Lueders Spiro Bereveskos WOODARD, EMHARDT, MORIARTY MCNETT & HENRY LLP, D. Rusty Denton BINGHAM GREENEBAUM DOLL LLP, Perry L. Glantz Stinson Leonard Street LLP, Attorneys for Defendants Knauf Insulation, Inc. and Knauf Insulation GmbH.
John R. Maley James R. Sweeney II BARNES & THORNBURG LLP Attorneys for Defendant Walter Johnson.
Michael N. Kahaian Stout Risius Ross Representative of Non-Party Stout Risius Ross.
ORDER PRESERVING PRIVILEGE
R. BROOKE JACKSON, UNITED STATES DISTRICT COURT JUDGE.
On December 18, 2015, the Court authorized Plaintiffs to retain a forensic accounting firm to locate certain documents, as described in paragraph 10 of the Parties’ Stipulated Order entered, as modified, on that date (“Stipulated Order”). The order states that (1) the accounting firm’s review “shall not include attorney client privileged communications and materials and shall not violate any applicable foreign privacy law” and (2) the scope of the review is limited to “the purpose of locating Category A, B, and C documents.”
Plaintiffs retained the accounting firm Stout Risius Ross (“SRR”) to conduct the review contemplated by the Stipulated Order. SRR has asked Defendant Knauf Insulation, Inc. (“Knauf”) to provide SRR certain electronically stored information (“ESI”) that QDiscovery, LLC (“QDiscovery”) collected from Knauf and maintains (the “Knauf ESI”) at the direction of Knauf’s counsel for purposes of Knauf’s defense to the claims in this case and to respond to discovery requests issued by Plaintiffs. SRR may further ask Knauf to provide access to additional documents, information, or data reasonably required by SRR to complete its investigation (collectively with “Knauf ESI, ” the “Knauf Information”). By seeking entry of this Order Preserving Privilege (the “Order”), the Parties herein agree to the below procedure to allow Knauf to disclose the Knauf Information, including but not limited to the copies of Knauf ESI maintained by QDiscovery, from Knauf during the course of this investigation in a way that will (1) preserve any privilege and protection applicable to any such information, (2) ensure the confidentiality of the Knauf Information, and (3) allow for the disposition of the Knauf Information at the conclusion of this litigation.
NOW, THEREFORE, for good cause shown and based on the representations and stipulations of the Parties, the Court ORDERS the following:
1. Within five (5) business days of entry of this Order, Knauf shall provide to SRR complete, unprocessed electronic copies of the Knauf ESI, along with all chain of custody information and acquisition documentation necessary for SRR to verify the technical methods of collection for the Knauf ESI. Knauf may withhold or redact from said chain of custody information or acquisition documentation information protected by the attorney-client privilege or work product doctrine. To the extent SRR is unable to verify the technical methods of collection or seeks additional Knauf Information, SRR may conduct interviews of the custodians Knauf identified in the Stipulated Order and make its own collection of their documents, information, or ESI as reasonably necessary to complete the review authorized by the Court; provided, however, that SRR shall cooperate with Knauf in scheduling any such interviews and collections at reasonable times and with the participation of Knauf’s counsel. After receiving any Knauf Information, SRR shall load or process the Knauf Information onto its review system and return the Knauf Information, including all unprocessed ESI, to Knauf’s counsel as soon as possible; however, if loading or processing any Knauf Information takes more than ten (10) business days, SRR will notify Knauf and counsel for Plaintiffs in writing and identify the reason for the delay.
2. Within five (5) business days of entry of this Order, Knauf shall provide to SRR keyword and name filters to be used by SRR to identify information potentially protected by the attorney-client privilege or the work product doctrine. After loading any Knauf Information onto its review system, SRR shall electronically apply SRR’s filters for identifying the relevant set of Knauf Information that may contain Category A, B, and C documents (the “Relevant Knauf Information”). SRR will segregate all Knauf Information not identified as Relevant Knauf Information and not allow access to or review of any of this segregated information unless and until SRR follows the privilege review process set forth below for Relevant Knauf Information. Before SRR may review any of the Relevant Knauf Information, SRR shall apply Knauf’s keyword and name filters to segregate and return to Knauf’s counsel all Relevant Knauf Information identified by those filters as potentially protected by the attorney-client privilege or the work product doctrine. Knauf will then review the returned Relevant Knauf Information for privilege. Within thirty (30) days after SRR returns Relevant Knauf Information to Knauf for privilege review, Knauf will return to SRR any of the Relevant Knauf Information that does not contain information protected by the attorney-client privilege or work product doctrine and will further provide to SRR and counsel for Plaintiffs a privilege log of documents not returned, except that Knauf may elect to return documents to SRR with any privileged or protected information redacted. SRR may physically review the Relevant Knauf Information not returned to Knauf for Category A, B and C documents while Knauf is performing its privilege review. The Parties agree and the Court finds that this constitutes reasonable steps to prevent disclosure of privileged or protected information, as required by Federal Rule of Evidence 502(b).
3. The Court further ORDERS, pursuant to Federal Rule of Evidence 502(d), that any disclosure to SRR by Knauf of any information covered by the attorney-client privilege or work product doctrine shall not constitute a waiver in this action or in any other federal or state proceeding. There shall be no waiver in this or any other proceeding of any privileged or protected information, including but not limited to any information with respect to:
a. Documents disclosed that contain privileged or protected information;
b. The subject matter of any such documents, including any related communications or documents;
c. Any communications or documents relating to those who sent or received or are named in any ...