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

Case 1 :04-cv-01258-SLR Document 281 Filed O3/29/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE ,_ _
DISTRICT OF DELAWARE

SOLUTIONS, LLC, :
Plaintiff, y
: NO..: 04-1259 ·SLR
v. :
TI-IE TRIZETTO GROUP, INC.,
Defendant- _ I
SPECIAL MASTER ORDER NO. 1 -
I Louis C. Bechtle, Special Discovery Master I November 9, 2005
I Ihis Order addresses a request by plaintiff for the return of inadvertently
produced privileged documents. The parties’ positions have been set forth in defendants' refusal
" of pla.intiff’ s request in its letter ofOctober 18, 2005 and plaintifs response thereto its letter
ofNovember 7, 2005.. The Special Master has reviewed the pa1ties’ letter briefs and concludes
that the documents should be returned to the plaintiffi At the center ofthe dispute is the
provision in Section 13..2 ofthe Stipulated ProtectiveiOrder that provides that the producing
party must give written notice to the receiving party or parties within twenty (20) business days H
following such inadvertent production that the information, document, or thing is privileged,
"CON"FIDENTIAL"_or “I-HGHLY CONFIDENTIAL?. The stipulation provides that if such l.
notice is given, counsel for· the receiving party will promptly return such inadvertently produced
information and all copies thereofto counsel for the producing party..
The material in question was produced several months before plaintiffs counsel learned
that the production had been inadvertent, which, kr1owledge_ came to plaintiffs counsel’s

Case 1 :04-cv-01258-SLR Document 281 Filed O3/29/2006 Page 2 of 3
attention in mid August 2005.. On August 17, 2005, plaintiffs counsel sent a letter to counsel for
defendant asking for the documents to be returned or· destruction. Plaintiff s counsel contends in
its brief that this notice was before depositions were taken of plaintiffs employees by defendant.
Defendant’s position essentially is despite what the practice may be concerning the return of
inadvertently produced privileged documents, the parties in this case in accordance with Federal
Rule of'Civil Procedure 29 entered into a binding stipulation that provided for no obligation to
return such documents unless notice was received within twenty (20) days ofthe production.
Plaintiff s position is that the 20-day requirement to give notice is not absolute, but merely
means that if notice is given within that period, the other steps the court must go through to
warrant return do not have to be considered.. Plaintiff` asserts that those steps in the District of
Delaware require the court to consider: 1) whether the client intended to disclose the document, ‘
2) whether the disclosure was inadvertent, and 3) whether· the disclosure was unintentional but I
was negligent or wreck1ess.. Defendant’s position is simply that the parties entered into an order l
that removes such a pr·ocess nom consideration after the passage of twenty (20) days ofthe
production.
The better ruling here appears to be that advanced by the plaintiff. There have been
substantial doctunent productions in this case by both sides.. There is nothing to suggest that the
inadvertent production was intentional, negligent, or· wreckless. Furthennore, there is nothing to
suggest that plaintiffin fact knew that the production had been made that would commence the
twenty-day clock to run under 13..2. This supports the conclusion that plaintiff s asseruon that it
gave notice within several days of learning ofthe production was the`promptness envisioned by .
the need to act responsibly following recognition that an inadvertent production had taken place.
_ 2

Case 1 :04-cv-01258-SLR Document 281 Filed O3/29/2006 Page 3 of 3
For the foregoing reasons, the documents r·efer1·ed to in the pa11ies’ application and
response to the court as having been inadvertently produced by the plaintiff should returned in
accordance with the provisions of the parties’ stipulated order:. ·
SO D:
r
UIS C.. BECHTL
SPECIAL MASTER
n 3