In re: Disposable Contact Lens AntiTrust Litigation. This Document Relates to: all Actions Case No. 3:15-md-2626-J-20JRK United States District Court, M.D. Florida, Jacksonville Division Signed October 24, 2016 Klindt, James R., United States Magistrate Judge ORDER I. Status *1 Prior to a regularly scheduled telephonic discovery status hearing held on August 31, 2016, Class Plaintiffs (“Plaintiffs”) and Defendant Bausch & Lomb (“Defendant”) advised the Court there is an issue regarding a “clawback” request Defendant has made with respect to certain privileged documents it inadvertently produced to Plaintiffs. See Notice (Doc. No. 295), filed August 30, 2016; Minute Entry (Doc. No. 296), entered August 31, 2016. It became apparent during the hearing that Plaintiffs and Defendant were interpreting differently the relevant provisions of a Stipulated Confidentiality Order (Doc. No. 226; “Confidentiality Order”) entered by the Court pursuant to the parties' joint request on April 27, 2016.[1] The undersigned determined briefing was necessary and ordered Plaintiffs and Defendant to do so by September 9, 2016 (Doc. No. 297), which they timely did, see Bausch & Lomb Incorporated's Brief in Response to Court's September 1, 2016 Order re: Interpretation of the Relevant Provisions of the Confidentiality Order (Doc. No. 309; “Defendant's Brief”) and accompanying declaration (Doc. No. 310; “Haimi Declaration”), filed September 9, 2016; Plaintiffs' Motion to Enforce the Confidentiality Order (Doc. No. 311; “Plaintiffs' Motion”) and accompanying declarations (Doc. No. 312; “Herrera Declaration”) (Doc. No. 313; “Guglielmo Declaration”), filed September 9, 2016. In short, the parties dispute whether the Confidentiality Order permits Plaintiffs to review hundreds of inadvertently-produced privileged documents for the purpose of determining whether to move the Court to compel such material. Having reviewed the Confidentiality Order and the parties' submissions, the undersigned finds Plaintiffs may not review the documents for that purpose. II. Factual Background The facts critical to resolving the instant dispute are essentially undisputed. Plaintiffs, in reviewing documents Defendant had produced to them (that Defendant had previously produced to the New York Attorney General (“NYAG”)), “encountered several potentially privileged documents.” Plaintiffs' Motion at 3. Plaintiffs' counsel made Defendant's counsel aware of these potentially privileged documents during a conference call on August 16, 2016. Id. at 3-4. Evidently, although these documents were marked as privileged by Defendant, somehow electronic images of the documents were viewable by Plaintiffs when Defendant did not intend them to be. See Defendant's Brief at 2-3. Plaintiffs' counsel indicated that approximately 800 documents are potentially privileged and viewable. Haimi Declaration at 2. After the call, Plaintiffs' counsel provided one sample document to Defendant's counsel to review. Defendant's Brief at 3; Herrera Declaration at 1. After conferring with its e-discovery vendor, Defendant determined there are 834 documents marked as privileged that were inadvertently produced. Defendant's Brief at 3. On August 25, 2016, Defendant's counsel sent Plaintiffs' counsel a “clawback” letter (“the letter”) and included the bates numbers for all of these documents in an appendix to the letter. See Haimi Declaration at Ex. 3. Defendant later determined, however, that “roughly half of those 834 privileged documents included slipsheets rather than images, bringing the scope of the inadvertent disclosure closer to 460 documents.” Defendant's Brief at 3 n.5. Additionally, the one sample document Plaintiffs' counsel provided Defendant's counsel to review was not actually privileged, even though it was marked privileged on the NYAG privilege log. Plaintiffs' Motion at 4. *2 On August 30, 2016, Defendant produced to Plaintiffs its privilege log, which is “identical to the log provided to the NYAG” with the exception of bates numbers. Defendant's Brief at 3, 3 n.6. Evidently, between the time the privilege log was produced on August 30, 2016 and the telephonic status hearing held the next day, Plaintiffs' counsel “reviewed 159 [of the d]ocuments and their corresponding log entries.” Plaintiffs' Motion at 4. Plaintiffs represent that their “review revealed that the NYAG Privilege Log misidentifies the subject matter of, or the identity of the attorneys associated with, at least 111 of the Privilege Log Documents, or approximately 70% of the 159 documents reviewed.” Id. at 5; see Herrera Declaration at 4. During the August 31, 2016 hearing and documented by an Order (Doc. No. 297) entered September 1, 2016, the undersigned instructed Plaintiffs' counsel that “[n]o additional review of the inadvertently-produced documents shall take place by Class Plaintiffs' counsel (or anyone on their team) until the Court has ruled on this issue.” III. Discussion The relevant portions of the Confidentiality Order state: 20. Pursuant to Rule 502(d) of the Federal Rules of Evidence, the disclosure of documents, ESI, testimony, information and/or things that are protected from disclosure under the attorney-client privilege, work product doctrine, and/or any other applicable privilege, protection or immunity (“Privileged Material”), whether inadvertent or otherwise, shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work-product or any other applicable privilege, protection, or immunity in this or any other Federal or State proceeding for the produced document or specific material or information disclosed, or any other document, material, or information covering the same or a similar or related subject matter. The parties agree that if a receiving party discovers information that contains privileged matter or attorney work product, it shall be returned immediately. The parties further agree that: (1) absent exceptional circumstances, a statement by a party that a production of Privileged Material was inadvertent shall be dispositive; (2) they are all taking reasonable steps to prevent disclosure of Privileged Material; and (3) a party shall be deemed to have taken prompt steps to rectify the inadvertent production of Privileged Material if it notifies the receiving party within fourteen (14) calendar days of learning of the inadvertent production. If a party has produced Privileged Material, inadvertently or otherwise, and if the party makes a written request for the return or destruction, pursuant to this Paragraph, of any Privileged Material (including any analyses, memoranda or notes that were internally generated based upon such inadvertently-produced Privileged Material) then in the custody of another party or non-party, the possessing person or entity shall either sequester or destroy the Privileged Material and all copies thereof, or return the Privileged Material within ten (10) business days, and the receiving party will also make no use of the information contained in the Privileged Material or further disseminate the Privileged Material regardless of whether the receiving party disputes the claim of privilege. As to any analyses, memoranda or notes that were internally generated based upon such produced Privileged Material, the possessing person or entity shall have the option of destroying such materials in lieu of returning the same, and in such event shall provide the producing party with a declaration confirming timely destruction of the same. 21. The party shall provide sufficient information to the receiving party regarding the asserted privilege(s), for example, in the form of a privilege log or privilege log entry. 22. If the receiving party disputes the assertion of privilege, the receiving party may move the Court for an order compelling production of the Privileged Material. The burden of showing that the material is privileged shall be determined under applicable law, including Federal Rule of Evidence 502. *3 23. The receiving party may not use the Privileged Material or any other document or material information reflecting the contents of the Privileged Material for any purpose whatsoever other than moving the Court for an order compelling production of the Privileged Material until the Court has determined that the material is not privileged. Subject to the Court's direction, resolution of the issue may include the Court's review of the potentially Privileged Material in camera. If any such motion is not filed within fourteen (14) days after a request to return the Privileged Material (or such later time as agreed upon by counsel), the possessing person or entity shall return the Privileged Material (and all copies thereof) to the party or non-party who produced or supplied it and shall expunge from any other document or material any information reflecting the contents of the returned material. If a motion challenging the privileged nature of the material is filed and the Court determines that the returned material is privileged, the possessing person or entity shall, within five (5) business days of the Court's order, expunge from any other document or material any information reflecting the contents of the privileged material. Confidentiality Order (Doc. No. 226) at 17-19 (emphasis added). Plaintiffs, focusing mainly on the first sentence in paragraph 23, argue that rules of contract interpretation require the Court to interpret the Confidentiality Order as permitting them to review the inadvertently-produced documents for the purpose of moving the Court to compel Defendant to produce the documents.[2] Plaintiffs' Motion at 5-9. Further, Plaintiffs contend that “considerations of fairness counsel in favor of Plaintiffs' position” because their comparison of the 159 documents (that they reviewed prior to the Court ordering them to stop) to Defendant's NYAG privilege log shows that the log is inaccurate as to about 70% of those documents. Id. at 9-10 (emphasis and capitalization omitted). Defendant contends that both the “Confidentiality Order and the Federal Rules of Civil Procedure [ (“Rule(s)”) ] clearly require Plaintiffs to destroy or sequester the privileged material and make no use of the information contained in those materials.” Defendant's Brief at 4 (emphasis and capitalization omitted). Says Defendant, the first sentence in paragraph 23 must be read in conjunction with its surrounding language, both in preceding paragraphs and in the sentence immediately following the first one in paragraph 23. Id. Generally, the Rules govern the inadvertent disclosure of privileged material. Pursuant to Rule 26: If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to a court under seal for a determination of the claim. Fed. R. Civ. P. 26(b)(5)(B). The Rules also provide that parties are free to agree on provisions to be included in an order governing the disclosure of privileged information, see Fed. R. Civ. P. 16(b)(3)(B)(iv); Fed. R. Civ. P. 26(f)(3)(D); Fed. R. Evid. 502, and “[s]uch agreements and orders ordinarily control if they adopt procedures different from those in Rule 26(b)(5)(B),” Fed. R. Civ. P. 26 advisory committee's note to 2006 amendment. *4 Here, reading the relevant portions of the Confidentiality Order together, the undersigned concludes that it does not permit Plaintiffs to review the inadvertently-produced privileged documents for the purpose of determining whether to move the Court to compel Defendant to produce those documents. Paragraph 20 expressly states that a receiving party, when notified by a producing party that the producing party inadvertently produced privileged material and requested to return the material, “will also make no use of the information contained in the Privileged Material or further disseminate the Privileged Material regardless of whether the receiving party disputes the claim of privilege.” This provision is consistent with Rule 26(b)(5)(B). As to paragraph 23, at first glance it could be interpreted as inconsistent with paragraph 20, but when read in context, it is not. It states that “[t]he receiving party may not use the Privileged Material or any other document or material information reflecting the contents of the Privileged Material for any purpose whatsoever other than moving the Court for an order compelling production of the Privileged Material until the Court has determined that the material is not privileged.” But the next line, consistent with Rule 26(b)(5)(B), provides the method by which the material can be used: “Subject to the Court's direction, resolution of the issue may include the Court's review of the potentially Privileged Material in camera.” In other words, the way to “use” the material for the purpose of moving the Court to compel the material is to submit it for incamera review, if permitted. If the parties in drafting the Confidentiality Order intended a procedure wholly different than the one contemplated by the Rules, the Confidentiality Order should have expressly provided that the receiving party is able to review the inadvertently-produced material for the purpose of determining whether to move the Court to compel it. Instead, the more likely intent and the undersigned's interpretation of the plain language of the Confidentiality Order is that the parties generally agreed upon procedures consistent with the Rules. As such, a review of the documents is not permitted. After due consideration, it is ORDERED: Plaintiffs' Motion to Enforce the Confidentiality Order (Doc. No. 311), to the extent it seeks a different interpretation of the Confidentiality Order than the one set forth above, is DENIED. Plaintiffs shall not conduct any further review of the inadvertently-produced documents. Further, Plaintiffs shall comply with the terms of the Confidentiality Order regarding sequestration, destruction, or return of such documents. The undersigned is troubled, however, by Plaintiffs' observations about the inaccuracy of a number of entries in Defendant's NYAG privilege log. Defendant shall, therefore, revisit and amend the privilege log and provide it to Plaintiffs no later than November 21, 2016. Plaintiffs have fourteen (14) days after receiving the amended privilege log to move the Court to compel any documents for which Plaintiffs dispute the privilege. DONE AND ORDERED at Jacksonville, Florida on October 24, 2016. Footnotes [1] Although the parties submitted different proposed confidentiality orders, the language in dispute was agreed upon. [2] Plaintiffs also state, through the Guglielmo Declaration, that the parties “exchanged dozens of emails” concerning the proposed confidentiality order, and Defendant never sought to change proposed paragraph 23.