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Zito v. North Carolina Coastal Resources Commission

United States District Court, E.D. North Carolina, Northern Division

October 15, 2019

MICHAEL ZITO and CATHERINE ZITO, Plaintiffs,
v.
NORTH CAROLINA COASTAL RESOURCES COMMISSION, Defendant.

          CONSENT PROTECTIVE ORDER (CLAWBACK AGREEMENT)

          JAMES E. GATES UNITED STATES MAGISTRATE JUDGE

         THIS MATTER COMES before the undersigned Judge at the request of all parties for entry of a consent protective order pursuant to Federal Rule of Civil Procedure 26(b) and Federal Rule of Evidence 502.

         NOW WHEREFORE, IT IS HEREBY ORDERED with the consent of the parties that discovery sought in this case shall only be had upon the following terms and conditions:

         I. Definitions.

         a. "Confidential" refers to a claim that documents or information conform to descriptions included in the North Carolina Public Records Act, N.C. Gen. Stat. § 132-1.2. It also includes a claim that documents or information are subject to Article 7 of N.C. Gen. Stat. Chapter 126. Documents or information may be Confidential whether they are produced by a party to this action or by a third person pursuant to a subpoena or other Court order or process.

         b. To "delete" refers to the process of destroying or erasing Identified Materials from any systems used to house the documents, including document review databases, hard drives, cloud storage, and any other location that stores documents. This concept also includes destroying any hard copies or paper printouts of Identified Materials.

         c. "Inadvertent Disclosure" refers to the provisions in Rule 502 of the Federal Rules of Evidence under which a disclosure does not operate as a waiver of the attorney-client privilege or work-product protection.

         d. "Identified Materials" refers to documents that the producing party has, following production, identified in writing to the receiving party as C6rifi.dential, Privileged, or otherwise Protected from Disclosure.

         e. "Privileged" refers to a claim of privilege under the attorney-client privilege or other privilege allowed under Rules 501 and 502 of the Federal Rules of Evidence.

         f. "Protected from Disclosure" refers to a claim that documents are trial preparation, work-product, or subject to a common interest or other similar doctrine.

         g. To "sequester" refers to the procedure by which Identified Materials and any notes made from the Identified Materials are set apart from other documents produced in this litigation pending resolution of a claim that the Identified Materials are Confidential, Privileged, or Protected from Disclosure.

         II. Inadvertent Disclosure, Non-Waiver, and Right to Clawback.

         The Inadvertent Disclosure of documents (including both paper documents and electronically stored information) that are Confidential, Privileged, and/or Protected from Disclosure shall not constitute a waiver or impairment of any claim of Confidentiality, Privilege, or Protection from Disclosure in this case or in any other federal or state proceeding, subject to the provisions set forth below:

a. The producing party must notify the receiving party promptly, in writing, upon discovery that Confidential, Privileged, or other materials Protected from Disclosure (hereinafter referred to as the ...

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