Free Report and Recommendations - Special Master - District Court of Delaware - Delaware

Case 1 :04-cv-01258-SLR Document 282 Filed O3/29/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
n
SOLUTIONS, LLC, :
Plaintiff]
: NO.: 04-125 9 -SLR
v. :
THE TRIZETTO GROUP, lNC..,
N Defendant. p
RECONSIDERATION OF SPECIAL MASTER ORDER NO. 1 `
Louis C. Bechtle, Special Discovery Master November 29, 2005
l The defendant raises two points for reconsideration of the SDM’s Order No..
1 having to do with the claim of inadvertent production of documents.
Defendant contends that if the documents are privileged, they should not be
returned because the stipulated procedure was not followed.. Defendantclaims in J
the alternative that even if the documents are ordered to be returned under the I
stipulation providing for the inadvertent return of privileged documents, they need
· not be returned because they are not privileged.
First, the stipulated procedure has been followed in the SDM’s view and this
_ does not conflict with the result decided by Judge Robinson in the case cited by
defendant of'Praxair·, Inc., et al. v. ATMI, INC., et al. There, a third party

Case 1:O4—cv-01258-SLR Document 282 Filed O3/29/2006 Page 2 of 3
appeared at a deposition in January 2005. When the third party produced certain
documents plaintiffs counsel noted that the documents had been inadvertently -
produced and declared that they should be returned. Defendant’s counsel, who
was participating by telephone at the deposition agreed to do that at a later time.
l Several weeks later, the defendant’s lawyer resisted returning the documents and
plaintiffs counsel did nothing. Eventually, the documents turned up on an exhibit
list some months later·, and at that juncture, the plaintiff again sought their return
which Judge Robinson refused. Here, while there was some delay between the
inadvertent production by McKesson and its discovery, once discovered,
McKesson moved promptly for the return under the procedure.. At the heart ofthe l
l process is a need, once inadvertence is discovered, for promptness, which was not
displayed by counsel in the case, but was displayed by plaintiff s counsel
here.
" Whether the documents were privileged or not is another matter. Indeed,
whether they are relevant or not is another matter. Accordingly, the following
should take place forthwith: ‘
(a) the doctunents should be returned because it is the SDM’s view ·‘
that the plaintiff, under the circumstances, conformed with the inadvertent
production procedure and played by the rules.
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Case 1:04-cv-01258-SLR Document 282 Filed O3/29/2006 Page 3 of 3
· l - - (b) upon their· return, if the documents are not relevant, they need not
be produced.
_ ‘ (c) ifthe documents are relevant and not privileged, they should be
produced.
(d) if the documents are relevant and privileged, they should appear as
I- a supplement to the plaintiff s privilege log. ‘
Defendant’s request for reconsideration is denied.
A I SO ORDERED:
LOUI C. B CHTL A
4 SPECIAL DISCOVERY MASTER
l DATED: November 29, 2005 ‘ A
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