United States District Court, M.D. Pennsylvania
MEMORANDUM OPINION ON DISCOVERY ISSUES
WILLIAM I. ARBUCKLE, III, District Judge.
Discharged employee sued corporate employer alleging discrimination, retaliation, and wrongful discharge in violation of federal and state law. Discovery issues arose concerning use and access to confidential information and the effect of disclosing privileged information in response to requests for document production. Pursuant to a Discovery Order,  the parties submitted proposed stipulated orders regarding disclosure of confidential information and non-waiver of attorney-client privilege and work product protection. The parties were informed one of the two proposals would most likely be selected and entered as a protective order.
The primary difference between the two proposed orders concerns the applicability of conditions set forth in FRE 502(b) governing the effect of disclosing privileged information. Plaintiff's proposal would implement the Rule 502(b) clawback provisions while Defendant's proposal expressly rejects those provisions. Plaintiff's proposed order is preferable because: (i) it is in accord with the default provisions of Rule 502(b); and, (ii) it provides appropriate incentives for both parties to comply with discovery requests in a fair and efficient manner. Accordingly, Plaintiff's proposed Stipulated Protected Order will be adopted. A brief discussion of my reasoning follows.
I. Confidentiality Provisions
There is no substantive difference between the parties regarding use and access to confidential information. For ease of reference, the confidentiality provisions of each proposal are cited below.
1. Confidential information defined.
2. Scope of the proposed order, use of confidential information, and persons entitled to access. Note that the use of confidential information by "other witnesses, " is expressly subject to the provisions of the Discovery Order dated June 23, 2014.
3. Return or destruction of confidential documents upon final disposition of the case.
4. Right of party to object to admissibility of evidence not affected by the order.
5. Disputes re confidentiality.
6. Maintaining confidentiality.
II. Waiver of Attorney-Client Privilege and Work Product Protection
A. Plaintiff's Proposed Non-Waiver Provisions
Plaintiff proposes adopting (i) the non-waiver provisions set forth in FRE 502(b), and (ii) the procedures set forth in FRCP 26(b)(5)(B). Rule 502(b) provides that production of privileged or protected information in response to a discovery request does not operate as a waiver of attorney-client privilege or work product protection if (1) the disclosure is inadvertent, (2) the holder of the privilege (i.e. the producing party) took reasonable steps to prevent disclosure, and (3) the holder promptly took reasonable steps to rectify the ...