Case 6:21-cv-00755-ADA Document 55 Filed 04/15/22 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`GENTEX CORPORATION and INDIGO
`TECHNOLOGIES, LLC,
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`Plaintiffs,
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`THALES VISIONIX, INC.,
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`Involuntary Plaintiff,
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`v.
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`FACEBOOK, INC. and FACEBOOK
`TECHNOLOGIES, LLC,
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`Defendants.
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`Case No. 6:21-cv-00755-ADA
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`JURY TRIAL DEMANDED
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`AGREED FEDERAL RULES OF EVIDENCE 502(D) CLAWBACK ORDER
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`1.
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`PURPOSE
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`Pursuant to Federal Rules of Evidence 502(d) the production or disclosure of any
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`documents protected from discovery, including under the attorney-client privilege, work product
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`doctrine, the joint defense or common interest privilege, privacy laws and regulations, or any other
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`immunity from discovery (collectively "privilege or protection"), and accompanying metadata
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`("Protected Documents"), does not result in the waiver of any privilege or protection, including
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`subject matter waiver, associated with such Documents as to the receiving Party or any third parties
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`in this or in any other state or federal proceeding regardless of the circumstances.1 This Paragraph
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`provides the maximum protection allowed by Federal Rule of Evidence 502(d) with regard to
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`Protected Documents. Federal Rule of Evidence 502(b) does not apply to any disputes regarding
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`1 For the avoidance of doubt, nothing in this Order prevents a receiving Party from arguing that
`there has been a subject matter waiver in the event that a producing Party produces documents,
`e.g., opinions of counsel, as to which the producing Party does not provide a Clawback Notice.
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`KE 81737976.2
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`1
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`Case 6:21-cv-00755-ADA Document 55 Filed 04/15/22 Page 2 of 5
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`Protected Documents, and instead this Stipulated 502(d) Order governs all disputes regarding
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`Protected Documents produced in this litigation. Nothing contained herein requires the production
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`of Protected Documents, and no party is required to undertake a "quick peek" process under Fed.
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`R. Civ. P. 26(b)(5).
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`2.
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`CLAWBACK AGREEMENT
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`In the event that a producing Party discovers that it produced Protected Document(s), it
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`shall provide written notice of the claim of privilege or protection to the receiving Party (a
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`“Clawback Notice”), sufficiently identifying the Protected Document(s) within a reasonable time.
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`As soon as practicable after providing the Clawback Notice, the producing Party shall
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`provide (i) if only a portion of the document contains privileged or protected material, a new copy
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`of the document utilizing the same bates number(s) as the original that has been redacted to protect
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`the privileged or protected material; or (ii) if the entire document is privileged or protected, a slip
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`sheet identifying the same bates number(s) as the original noting that the document has been
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`withheld. Any Protected Document that is the subject of a Clawback Notice will be included on a
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`privilege log if and as required by the privilege-logging procedures agreed to by the parties or
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`ordered by the Court. Unless otherwise agreed to by the parties, the producing Party shall provide
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`the privilege log information pertaining to any Protected Document that is the subject of a
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`Clawback Notice within seven (7) business days of providing the Clawback Notice.
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`3.
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`PROCEDURES FOLLOWING CLAWBACK NOTICE
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`a)
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`Within seven (7) business days of receipt of a Clawback Notice (regardless of
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`whether the receiving Party agrees with or plans to challenge the producing Party's claim of
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`privilege or protection), the receiving Party must promptly return and/or destroy the Protected
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`Document(s), all copies thereof, and any notes that reproduce, copy, or otherwise disclose the
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`substance of the Protected Documents and certify to the producing Party when this return and/or
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`destruction is complete.
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`b)
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`If a receiving Party challenges a claim that a Protected Document specified in a
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`Clawback Notice is privileged or protected, the receiving Party shall notify the producing Party of
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`its challenge within 14 business days of receiving the Clawback Notice.
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`c)
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`Within 14 business days of the producing Party receiving notification of the
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`challenge, the parties shall meet and confer in an effort to resolve their disagreement. If the parties
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`are unable to resolve their disagreement, either party may submit the issue to the Court for a
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`determination.
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`4.
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`PROCEDURE UPON DISCOVERY BY A RECEIVING PARTY OF PRODUCED
`OR DISCLOSED PROTECTED DOCUMENTS
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`In the event that a receiving Party discovers that it has received or examined Document(s)
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`that are or may be subject to a claim of privilege or protection, the receiving Party promptly shall
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`(i) sequester the Document(s), and (ii) within four business days of such discovery, notify the
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`producing Party of the possible production or disclosure by identifying the bates range(s) of the
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`Document(s) the receiving Party believes are or may be privileged or protected, and were or may
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`have been produced or disclosed (a "Production Notice"). If the producing Party determines that
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`the subject Documents are privileged or protected, within four (4) business days of receiving a
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`Production Notice the producing Party shall provide a Clawback Notice as described in Section 2
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`above, after which the parties shall follow the procedures set forth in Sections 2 and 3, as
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`applicable.
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`5.
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`PROCEDURES DURING DEPOSITION AND HEARING
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`a)
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`If, during a deposition, a producing Party claims that a Document being used in the
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`deposition (e.g., marked as an exhibit, shown to the witness, or made the subject of examination)
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`contains material that is privileged or protected, the producing Party may, in its sole discretion, do
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`one or more of the following: (a) allow the Protected Document to be used during the deposition
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`without waiver of any claim of privilege or protection; (b) allow questioning about the Protected
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`Document but instruct the witness not to answer questions concerning the parts of the Protected
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`Document containing privileged or protected material; or (c) object to the use of the Protected
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`Document at the deposition, in which case no questions may be asked and no testimony may be
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`given relating to the Protected Document or the privileged or protected portion of the Document
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`until the matter has been resolved by agreement or by the Court. In all events, once the Protected
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`Document is no longer in use at the deposition, the receiving Party shall immediately sequester all
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`copies of the Document. As to any testimony subject to a claim of privilege or protection, the
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`producing Party shall serve a Clawback Notice within four business days after receipt of the final
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`transcript of the deposition, after which the parties shall follow the procedures set forth in Sections
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`2 and 3, as applicable. Pending determination of any challenge to such a Clawback Notice, all
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`parties with access to the deposition transcript shall treat the relevant testimony in accordance with
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`Section 3. In the event the Court decides the clawback dispute in the receiving Party's favor and
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`the receiving Party was denied the opportunity to examine a witness as to the materials at issue,
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`the witness shall be made available as soon as practicable after the Court's decision.
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`b)
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`If a receiving Party uses discovery materials in a brief or at a hearing, and the
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`producing Party has not served a Clawback Notice as to those materials in advance of the briefing
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`event or hearing, the producing Party must serve a Clawback Notice within four business days of
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`receipt of the briefing or the hearing. Thereafter, the procedures set forth in Section 3 apply. To
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`the extent any privileged or protected material is placed into the public record in connection with
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`briefing or a hearing, the receiving Party shall (a) withdraw the portion of the briefing and exhibits
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`that contain privileged or protected material, (b) request the court seal that material, or (c) join or
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`not oppose a motion to seal the privileged or protected material.
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`6.
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`PROHIBITION ON USE OF PRIVILEGED INFORMATION
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`To the extent any party (a) is aware that it has obtained documents or information through
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`production, disclosure, or communications that are or may be subject to a claim of privilege or
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`protection, or (b) has received a Clawback Notice, such Protected Documents and/or information
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`may not be submitted to the Court (other than in camera by the producing Party for purposes of
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`resolving a privilege dispute), presented for admission into evidence, sought in discovery in this
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`proceeding or in any other proceeding or action, or otherwise used or disclosed for any purpose,
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`unless and until the Parties agree or the Court makes a determination that such documents and/or
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`information are not entitled to protection. The party must also notify the opposing party of its
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`possession of such privileged information in accordance with the procedures described in Section
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`4.
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`15th
`It is SO ORDERED this
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` day of
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`April
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` 22
`, 20 .
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`Honorable Alan D Albright
`United States District Judge
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`5
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