ALABAMA AIRCRAFT INDUSTRIES, INC., Alabama Aircraft Industries, Inc.— Birmingham, and Pemco Aircraft Engineering Services, Inc. Plaintiffs, v. The BOEING COMPANY, Boeing Aerospace Operations, Inc. and Boeing Aerospace Support Center, Defendants Civil Action Number: 2:11–cv–03577–RDP United States District Court, N.D. Alabama Signed October 05, 2015 Counsel J. Michael Rediker, Meredith Jowers Lees, Peter Tepley, R. Scott Williams, Rebecca A. Beers, Rumberger Kirk & Caldwell PC, Reginald L. Jeter, Law Office of Celeste P. Armstrong, Roger A. Brown, Haskell Slaughter Young & Rediker LLC, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, Fl, for Plaintiffs. Alexia R. Brancato, Pro Hac Vice, Craig S. Primis, Erin C. Johnston, John C. O'Quinn, Matthew E. Papez, Kirland & Ellis LLP, Tia T. Trout–Perez, Washington, DC, John Thomas Richie, Kevin C. Newsom, Reed Thomas Warburton, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Defendants. Middlebrooks, David J., Special Master REPORT AND RECOMMENDATION *1 Before the Special Master is Boeing's Motion to Compel (Doc. #114) and AAI's Motion to Strike (Doc. #126).[1] For the reasons explained below, it is the recommendation of the Special Master that the Motion to Compel (Doc. #114) be GRANTED IN PART and DENIED IN PART, and that the Motion to Strike (Doc. #126) be deemed MOOT. I. INTRODUCTION In the course of this lawsuit, the Parties have produced a rather staggering amount of information,[2] much of which is most accurately described as electronically stored information (“ESI”). As would be expected in a discovery process as large as this, numerous disputes have arisen between the Parties, and some of those very disputes have now come before the undersigned for resolution. Specifically, on November 7, 2014, Boeing's counsel contacted AAI's counsel by letter, notifying AAI that Boeing had inadvertently produced a number of privileged documents. In the same letter, Boeing requested that AAI destroy the documents in accordance with certain agreed-upon discovery procedures. However, by letter dated November 11, 2014, AAI largely refused Boeing's clawback demand, insisting that many of the documents sought for return either (a) did not fall within a recognized privilege, or (b) were not due to be considered inadvertently produced. Shortly thereafter, Boeing notified AAI of a second set of inadvertently produced documents, and thus began a second round of hemming and hawing, with Boeing demanding return and AAI refusing on grounds of lack of privilege and waiver by disclosure. By the time Boeing filed its Motion to Compel on December 22, 2014, the Parties had settled their differences as to some of the documents, but the fundamental dispute remained. The following sections explore this dispute in detail, identify a framework for its analysis, and provide the Court with a recommendation as to its resolution. II. PROCEDURAL HISTORY On September 9, 2011, AAI initiated this lawsuit by filing a Complaint against Boeing in the Circuit Court of Jefferson County, Alabama.[3] Doc. #1–1 at p. 1. Shortly thereafter, on September 19, 2011, AAI began the discovery process, serving Boeing with its First Request for Production of Documents. Doc. #1–1 at p. 110. On June 6, 2013, the Court entered a Stipulation and Protective Order (Doc. #63), which was intended to govern, in part, the exchange of documents between the Parties. The Parties began producing documents in July 2013.[4] In April and May of 2014, the Parties entered into a Mutual Discovery Clawback Agreement (“the Clawback Agreement”) (Doc. #114–1), which sought to further define the rules governing the inadvertent production of privileged documents.[5] *2 On December 22, 2014, Boeing filed its “Motion to Compel Plaintiff to Comply with the Court's Protective Order, the Parties' Clawback Agreement and the Alabama Rules of Professional Responsibility Relating to Privileged Information in Plaintiff's Possession” (“Boeing's Motion to Compel”) (Doc. #114), seeking the return of numerous documents that it identified in November 2014 as having been inadvertently produced to AAI. Indeed, the Motion asks the Court to uphold Boeing's privilege assertions as to the documents at issue; order AAI to destroy all of the privileged material in its possession (including any privileged material that was incorporated into AAI's work product and/or internal communications); and order AAI to confirm to the Court and Boeing that such material was destroyed. Doc. #114 at pp. 13–14. AAI filed its Opposition to Boeing's Motion to Compel (Doc. #119) on January 9, 2015, asserting that the documents sought for return by Boeing are either (a) not privileged, or (b) no longer protected because their disclosure operated as a waiver of privilege. Doc. #119 at p. 2, ¶ ¶ 3 & 4. On January 23, 2015, Boeing filed its Reply (Doc. #121), which incorporated the Affidavit of Svetlana Klestoff (Doc. #121–2) as an exhibit. The Klestoff Affidavit was the trigger for AAI's subsequent Motion to Strike (Doc. #126), which was filed on January 28, 2014. That was followed by Boeing's Opposition to the Plaintiff's Motion to Strike (Doc. #129, filed on February 4, 2015) and AAI's Reply to Boeing's Opposition to Plaintiffs' Motion to Strike (Doc. #131, filed on February 9, 2015). By virtue of the June 10, 2015 Stipulated Order Appointing Special Master (Doc. #154), Boeing's Motion to Compel (Doc. #114) and AAI's Motion to Strike (Doc. #126) were referred to the undersigned for consideration, with the issuance of a report and recommendation to follow if the underlying disputes were not first resolved by the Parties. Accordingly, as dictated by the Stipulated Order, the undersigned will herein summarize the respected positions of the Parties, report all findings of fact and conclusions of law, and provide the Court with a recommendation regarding the disposition of the Motions.[6] III. PARTIES' POSITIONS A. Summary of Boeing's Position 1. There are two sets of privileged documents at issue. Category One involves a small number of privileged documents that Boeing included in its production without redaction and for which a privilege log was not provided until after the disclosure was discovered. Ex. A at p. 46. Following its discovery of the Category One disclosure, Boeing provided AAI with redacted versions of the documents, as well as a supplemental privilege log. Doc. #114 at p. 9. 2. Category Two consists of privileged documents to which Boeing applied redactions and for which it provided AAI a privilege log. Doc. #114 at p. 2. The Category Two documents were initially served in a non-searchable version that reflected Boeing's redactions. Doc. #114 at p. 3. However, Boeing also produced a searchable version of the documents, and when AAI ran searches on that version, it was able to view the privileged text that Boeing had originally redacted. Doc. #114 at p. 3. Boeing attributes this apparent “technical glitch” to an error by its e-discovery vendor. Doc. #114 at p. 3. As to the Category Two documents, Boeing makes no new privilege assertions; rather, it seeks to preserve the privilege assertions originally made. Doc. #114 at p. 3. 3. In its Motion to Compel, Boeing generally portrays AAI's clawback challenges as invalid and improper, arguing that AAI's tactics are in contravention of the Parties' agreed-upon discovery procedures. Doc. #114 at pp. 12 & 4. Indeed, Boeing cites the Clawback Agreement in making the assertion that “the parties stipulated that they were making reasonable efforts to prevent disclosure of privileged materials, and that any inadvertent disclosure would not be a waiver of privilege ...” Doc. #114 at p. 2. *3 4. Likewise, Boeing assails AAI's continued use of the disputed documents are Boeing's provision of notice of inadvertent disclosure, asserting that AAI should have notified Boeing upon discovery and refrained from studying or otherwise using the potentially privileged documents (and the information contained therein). Doc. #114 at pp. 4–6. 5. As to Category One, specifically, Boeing notes that the documents in dispute comprise less than 0.01% of Boeing's total production, which—considering the Eleventh Circuit's “scope of discovery” prong—weighs in favor of a finding of inadvertence. Doc. #114 at p. 2, n.1; Koch Foods of Alabama, LLC v. Gen. Elec. Capital Corp., 303 Fed.Appx. 841, 846 (11th Cir. 2008). 6. Boeing also argues that all of the Category One documents are, in fact, privileged. Doc. #114 at p. 9. 7. With respect to the Category Two documents, Boeing asserts that “[i]t defies logic to argue, as AAI does, that the production of the un-redacted metadata text somehow was not inadvertent when Boeing went to the effort of redacting the images of those very same documents.” Doc. #121 at p. 4. 8. As with Category One, Boeing argues that the Category Two documents are, in fact, privileged. Doc. #114 at p. 12. B. Summary of AAI's Position 1. In its Opposition to Boeing's Motion to Compel, AAI maintains that it timely objected to Boeing's clawback notices, and did so within the scope of applicable discovery procedures. Doc. #119 at p. 10. 2. As to what procedures are applicable, AAI contends that the Stipulation and Protective Order differs from—and is effectively modified by—the Clawback Agreement (while also noting that the Clawback Agreement has no application outside of those documents that were inadvertently produced) and that Boeing's invocation of ARPC 4.4(b) is inapposite, as the inadvertent production of privileged documents is governed by the Parties' specific, agreed-upon procedures. Doc. #119 at p. 1, n.1; Doc. #119 at p. 21; Doc. #119 at p. 16. 3. As to Boeing's clawback demands, AAI argues that they are not due to be granted, as Boeing has failed to carry its burden in demonstrating (a) that the production of the Category One and Category Two documents was inadvertent, and (b) that the documents in Category One and Category Two are privileged. Doc. #119 at pp. 6–10; Doc. #119 at pp. 18–19. 4. Specifically, AAI contends that Boeing's claim of inadvertent production as to the Category One documents is belied by the fact that Boeing produced unredacted versions of those documents on multiple occasions and that such documents did not bear any redactions or indications of privilege. Doc. #119 at pp. 7–10. 5. In regards to the privilege status of the disputed docuements, AAI not only generally asserts that Boeing has failed to meet its burden of proof in establishing privilege as to each document, but also takes issue with specific privilege assertions, trumpeting, where applicable, the notions that “claims of attorney-client privilege with ‘in-house counsel warrant heightened scrutiny’ because ‘in-house counsel often wear a non-legal business hat,’ ” and legitimate privilege can be lost “if it is ‘disseminated beyond the group of corporate employees who have a need to know based on the scope of their corporate responsibilities.’ ” Doc. #119 at p. 17 (citations omitted). 6. Additionally, in its Motion to Strike, AAI argues that the Affidavit of Svetlana Klestoff is due to be stricken, in part, because it was untimely submitted. Doc. #126 at p. 1. AAI also contends that the Affidavit is vague and conclusory. Doc. #126 at p. 1. IV. FINDINGS OF FACT A. Relevant Timeline *4 1. June 3, 2005: Pemco (now AAI) and Boeing enter into a Memorandum of Agreement (“6/2005 Recompete MOA”). Doc. #55 at p. 2. 2. September 6, 2005: The 6/2005 Recompete MOA is re-issued, and amended by the addition of another company (“The 9/2005 Recompete MOA”). Doc. #55 at p. 3. 3. June 6, 2006: Boeing terminates the 9/2005 Recompete MOA. Doc. #55 at p. 5. 4. July 11, 2006: Boeing internal document reflects an awareness that lawsuit may arise out of the termination of the MOA. Doc. #119–2. 5. September 4, 2007: Boeing's in-house attorney provides AAI's counsel with Boeing's firewall rosters, Boeing's firewall Rules of Engagement, and other related documents. Doc. #119–3. 6. September 9, 2011: AAI files suit against Boeing. Doc. #1–1 at p. 1. 7. September 19, 2011: AAI serves its first document requests on Boeing. Doc. #1–1 at p. 110. 8. March 2, 2012: Boeing sends certain electronically-stored documents to its e-discovery vendor. See, e.g., Doc. #119–4. 9. August 1, 2012: Boeing and its e-discovery vendor, CaseCentral, enter into a Master Services Agreement. Doc. #119–1. 10. June 6, 2013: Court enters Stipulation and Protective Order, which includes provisions relating to the “inadvertent” production of privileged material and addressing the topic of its use. Doc. #63. 11. July 11, 2013: Boeing produces its initial set of documents. Doc. #119 at p. 5. 12. November 5, 2013: Boeing produces additional documents. Doc. #119 at p. 5. 13. May 21, 2014: The Parties fully execute the Clawback Agreement governing production in this action. Doc. #114–1. 14. July 2014: By this time (according to Boeing's estimations), AAI has identified Boeing's inadvertent document production. Doc. #114–7 at p. 3. 15. August 8, 2014: Boeing delivers a 375–page privilege log covering all of its production to date. Doc. #119 at p. 5. 16. November 7, 2014: Counsel for Boeing contacts counsel for AAI by letter, requesting clawback of the Category One documents. Doc. #114–7. 17. November 11, 2014: AAI rebuffs Boeing's initial clawback demand. Doc. #114–4. 18. November 12, 2014: Boeing serves AAI with a supplemental privilege log, which addresses the Category One documents. Doc. #119 at p. 6; Doc. #114–8. 19. November 21, 2014: Boeing issues a second clawback notice, disclosing its discovery of the technical error affecting the searchable version of the production and listing the five hundred and twenty-seven (527) documents that comprise Category Two. Doc. #114–5. 20. December 5, 2014: AAI serves its response to Boeing's clawback demands, in which it challenges Boeing's privilege assumptions as to fifty-three (53) of the documents affected by the technical error. Doc. #114–6. 21. December 22, 2014: Boeing files its Motion to Compel. Doc. #114. 22. January 29, 2015: AAI files its Motion to Strike. Doc. #126. B. Disputed Documents Out of the 558 documents identified by Boeing in its two separate clawback demands, only 75 documents remain in dispute today. Doc. #119 at p. 6, n.4. The following table depicts this breakdown. V. CONCLUSIONS OF LAW A. Analytical Framework 1. Parties' Proposed Framework *5 The Parties' dispute is not limited to the status of the underlying documents—they also disagree as to what criteria should control the clawback analysis. Collectively, the Parties have identified five sources that purportedly provide the framework for such an analysis. They are: The Court's June 6, 2013 Stipulation and Protective Order (Doc. #63). The Parties' Mutual Discovery Clawback Agreement (Doc. #114–1).[7] Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure (“FRCP”). Rule 4.4(b) of the Alabama Rules of Professional Conduct (“ARPC”). Rule 502(b) of the Federal Rules of Evidence (“FRE”). The relevant provisions of these sources are detailed below. a. Stipulation and Protective Order (Doc. #63) 1. The term “confidential” refers to and includes information that the designating party believes—in good faith—is confidential and/or is proprietary information which would not normally be revealed to third parties. Doc. #63 at p. 1, ¶ 1(c). 2. The term “Privileged Materials” refers to any documents, testimony, or information that a party claims is protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege. Doc. #63 at p. 2, ¶ 1(j). 3. The Order addresses the intersection between inadvertent production and privilege, generally establishing that “[i]f a Party at any time notifies a receiving Party that the Party has inadvertently disclosed privileged material to the receiving Party, the disclosure shall not be deemed a waiver ... of the applicable privilege or protection.” Doc. #63 at p. 5, ¶ 5. 4. The Order requires the receiving party, upon request, to “immediately take reasonable efforts to return the privileged material to the Party or destroy all summaries or copies of such privileged material ... ” Doc. #63 at p. 5, ¶ 5. Nevertheless, “[t]he return or destruction of any Privileged Material shall not preclude the Receiving Party from asking the Court for a ruling that the Disclosed Information was never privileged; however, the Receiving Party cannot assert as a basis for the relief it seeks the fact or circumstances that such Privileged Material has already been produced.” Doc. #63 at p. 5, ¶ 5 (emphasis added). b. The Parties' Mutual Discovery Clawback Agreement (Doc. #114–1) 1. The preamble to the Clawback Agreement variously provides: (1) “the Parties' stipulate and agree that the Parties are making reasonable efforts ... to identify privileged documents ... and to assert a privilege in a timely fashion;” (2) “it is the Parties' intention that the inadvertent production shall not be a waiver of the privilege and/or protections of the work product doctrine;” and (3) “nothing contained in this document limits Plaintiffs' or Defendants' right to challenge whether a document that the opposing party claims to be privileged is, in fact, privileged.” Doc. #114–1 at 1 (emphasis added). 2. The Clawback Agreement defines an “Inadvertently Produced Document” as “a document (or a portion of a document) produced to a Party that could have been withheld or redacted, in whole or in part, based upon a legitimateclaim of the attorney-client privilege, the work-product doctrine, or any other applicable privilege recognized under applicable law ...” Doc. #114–1 at p. 2, ¶ 3(a) (emphasis added). *6 3. “Inclusion of any Inadvertently Produced Document ... shall result neither in the waiver of any privilege or protection associated with such document ..., nor in a subject-matter waiver of any kind.” Doc. #114–1 at p. 2, ¶ 3(b) (emphasis added). 4. “The Receiving Party may object to the Producing Party's designation of an Inadvertently Produced Document ... If the Parties are unable to reach a resolution of a disputed designation ..., then either party may submit the disputed designation to the Court along with a request that the Court conduct an in camera review of the Inadvertently Produced Document ... The burden of establishing any privilege or protection will remain on the Producing Party.” Doc. #114–1 at p. 3, ¶ 3(e). 5. “The Parties agree that none of them shall assert or attempt to assert that the inadvertent production of an Inadvertently Produced Document in this litigation amounts to a waiver of privilege with respect to the Inadvertently Produced Document or to the subject matter of the Inadvertently Produced Document.” Doc. #114–1 at p. 4, ¶ 5 (emphasis added). 6. The Clawback Agreement and its provisions are meant to be “cumulative to, and not in lieu of, the provisions of the Stipulation and Protective Order ...” Doc. #114–1 at p. 4, ¶ 6. Likewise, the Clawback Agreement is not intended to alter the Parties' obligations regarding the provision of a privilege log. Doc. #114–1 at p. 4, ¶ 7. c. FRCP 26(b)(5)(B) 1. Pursuant to this rule, once a producing party asserts a claim of privilege as to a document that has already been produced, the receiving 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; ... and may promptly present the information to the court under seal for determination of the claim.” d. ARCP 4.4(b) 1. “A lawyer who receives a document that on its face appears to be subject to the attorney-client privilege or otherwise confidential, and who knows or reasonably should know that the document was inadvertently sent, should promptly notify the sender and (1) abide by the reasonable instruction of the sender regarding the disposition of the document; or (2) submit the issue to an appropriate tribunal for a determination of the disposition of the document.” e. FRE 502(b) 1. In a federal proceeding, the disclosure of otherwise privileged and/or protected material does not operate as a waiver of privilege if: (1) the disclosure was inadvertent, (2) the holder of the privilege or protection took reasonable steps to prevent disclosure, and (3) the holder of the privilege took reasonable steps to rectify the error. 2. Framework To Be Applied a. FRE 502(e) Not included among the sources cited by the parties is FRE 502(e), which states that “[a]n agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.” FRE 502(e). Although the provision is framed as an assurance to non-parties that they are not bound by a disclosure agreement entered into by the parties (absent the agreement's incorporation into a court order), it also “codifies the well-established proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among them.” FRE 502(e), Advisory Committee Notes. In other words, FRE 502(e) recognizes the validity and primacy of agreements—such as the one entered into by the parties to this lawsuit—that alter FRE 502(b)'s default waiver framework. b. Clawback Agreement *7 Absent an agreement to the contrary, a case such as this—where a receiving party argues that a producing party's disclosure results in a waiver of any alleged privilege—would normally be decided by a two-step analysis that is rooted in FRE 502(b). The first part of this analysis involves an evaluation of the disputed documents' privilege status. See Latele Television, C.A. v. Telemundo Communications Group, LLC, 2014 WL 4449451, *3 (S.D. Fla. Sept. 10, 2014)(quoting United States v. Sigman, 2013 WL 5890714, *4 (S.D. Fla. Nov. 4, 2013)) (“Before determining whether there has been an inadvertent disclosure here that meets the requirements of Federal Rule of Evidence 502 (‘FRE 502’), first ‘it must be determined if the documents in question are privileged.’ ”); see alsoPeterson v. Bernardi, 262 F.R.D. 424, 427 (D.N.J. 2009) (“When deciding whether inadvertently produced documents should be returned a two-step analysis must be done. First, it must be determined if the documents in question are privileged. It is axiomatic that FRE 502 does not apply unless privileged or otherwise protected documents are produced.”). The second part of the analysis involves a determination of whether the three elements of FRE 502(b) (“the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error ...”) were satisfied in the situation at issue. However, in the present case, the Parties altered this default analysis through their Clawback Agreement, in which they contracted away the possibility of waiver by disclosure and, instead, narrowed the analytical focus to a disputed document's privilege status. As was noted above, the preamble to the Clawback Agreement provides that “it is the Parties' intention that the inadvertent production shall not be a waiver of the privilege and/or protections of the work product doctrine.” Doc. #114–1 at p. 1 (emphasis added). This general pronouncement is borne out in the Agreement's specific provisions, chiefly Paragraph Five. Paragraph Five of the Clawback Agreement reads: “The Parties agree that none of them shall assert or attempt to assert that the inadvertent production of an Inadvertently Produced Document in this litigation amounts to a waiver of privilege with respect to the Inadvertently Produced Document or to the subject matter of the Inadvertently Produced Document.” Doc. #114–1 at p. 4, ¶ 5 (emphasis added). The Agreement does not provide a definition for the term “inadvertent,” but does define “Inadvertently Produced Document” as “a document (or portion of a document) produced to a party in this litigation that could have been withheld or redacted, in whole or in part, based on a legitimate claim of attorney-client privilege, the work-product doctrine, or any other applicable privilege recognized under applicable law ...” Doc. #114–1 at p. 2, ¶ 3(a) (emphasis added). In other words, by prohibiting themselves from raising the issue of waiver as to “Inadvertently Produced Documents” and anchoring the term “Inadvertently Produced Document” in a document's potential privilege status, the Parties have, in essence, agreed to stipulate to inadvertence where there exists a colorable claim of privilege as to a produced document. As such, the Clawback Agreement does away with the 502(b) portion of the default analysis entirely, leaving only the question of privilege. This reality is reinforced by the Agreement's only mechanism for challenging a clawback demand, which is solely concerned with the issue of privilege. Doc. #114–1 at p. 3, ¶ 3(e) (“The Receiving Party may object to the Producing Party's designation of an Inadvertently Produced Document ... either party may submit the disputed designation to the Court along with a request that the Court conduct an in camera review of the Inadvertently Produced Document ... The burden of establishing any privilege or protection will remain on the Producing Party.”) (emphasis added). Accordingly, the undersigned concludes that Paragraph 3(e) of the Clawback Agreement provides the exclusive analytical framework to be properly applied in this case. B. Boeing's Motion to Compel *8 When evaluated through the prism of the Clawback Agreement's analytical framework, the undersigned finds that Boeing's Motion to Compel is due to be granted in part and denied in part. Indeed, to the extent that Boeing's Motion seeks to confirm that the production of the Category One and Category Two documents was inadvertent, the Motion is due to be granted, as the documents satisfy the Clawback Agreement's definition of “Inadvertently Disclosed Documents.” The Clawback Agreement does not provide for a mechanism by which AAI can prevent the clawback of the Category One and Category Two documents on the basis of inadvertent production, and, in granting this portion of Boeing's Motion, the undersigned recognizes this reality. However, to the extent that the Motion seeks to uphold Boeing's privilege assertions and effectuate the permanent clawback of the Category One and Two documents, the Motion is due to be denied. It would be improper for the undersigned to make a wholesale determination as to the privilege status of the Category One and Category Two documents, where, as here, the undersigned has only been provided with a limited number of the disputed documents. Rather, in accordance with Paragraph 3(e) of the Clawback Agreement, each and every document about which there remains a privilege dispute should be submitted to the Special Master for in camerareview.[8] AAI should identify each and every document about which it is challenging Boeing's privilege claims. Its challenge should be based on the privilege log it has been provided. Boeing should provide the undersigned with each document identified by AAI and, if it likes, it may provide the undersigned with a more detailed privilege log for Special Master use only. AAI should notify Boeing and the Special Master when its identification of challenged documents will be submitted to the Special Master. Likewise, Boeing should notify AAI and the Special Master when it will provide the documents at issue to the Special Master along with any supplemental privilege log. The undersigned reserves the right to shorten the time periods proposed. Once analyzed, the undersigned will prepare a Report and Recommendation regarding what documents, if any, are privileged. C. AAI's Motion to Strike As noted above, AAI's Motion to Strike concerns the Affidavit of Svetlana Klestoff, a project manager for Boeing's e-discovery vendor. AAI argues that the Affidavit—which was included as an exhibit to Boeing's Reply (Doc. #121) as evidence in support of Boeing's claim that the production of the Category Two documents was inadvertent—should be stricken because (1) it was untimely submitted (having been included with Boeing's Reply, rather than its Motion), and (2) it contains vague and conclusory statements that should not be considered as evidence of inadvertence. However, given the analytical framework that controls this matter (i.e., the privilege-focused Clawback Agreement), the undersigned finds AAI's Motion (Doc. #126) to be moot. Indeed, the Affidavit speaks only to the issue of inadvertence, and, as such, is irrelevant to our analysis of whether the disputed documents can be permanently clawed back. Because the Affidavit has no bearing—either now or in the future—on the undersigned's privilege determinations, AAI's Motion to Strike is of no moment. VI. RECOMMENDATIONS For the reasons outlined above, the undersigned makes the following recommendations to the Court: • Boeing's Motion to Compel (Doc. #114) should be GRANTED IN PARTand DENIED IN PART, in accordance with the analysis above. To the extent that the Parties continue to dispute the privilege status of certain Category One and Category Two documents, the Parties should be given the opportunity to submit those documents—along with any necessary briefing—to the Special Master for in camera review. *9 • AAI's Motion to Strike (Doc. #121) should be deemed MOOT. Footnotes [1] For the sake of brevity, Plaintiffs will be referred to collectively as “AAI”, and Defendants will be referred to collectively as “Boeing.” [2] Boeing, alone, purports to have produced in excess of one million pages of information. Doc. #121 at p. 2. [3] Boeing filed a Notice of Removal on October 7, 2011, removing the case to the United States District Court for the Northern District of Alabama (“the Court”). [4] Exhibit A, June 12, 2015 Joint Report to Special Master at 20, 36 (“The Parties began a rolling document production in July 2013;” “Discovery in this matter has been ongoing since the summer of 2013 ...”). [5] The Clawback Agreement specifies that its provisions “are cumulative to, and not in lieu of, the provisions of the Stipulation and Protective Order,” which does briefly address the inadvertent production of privileged documents. Doc. #114–1 at p. 4, ¶ 6; Doc. # 63 at p. 6, ¶ 5. It should also be noted that the Clawback Agreement is apparently worded so as to restrict its applicability to the production of ESI, whereas the Stipulation and Protective Order is not so limited. [6] Paragraph 5 of the Stipulated Order provides if the Special Master recommends or requires “that a Party produce or disclose information subject to a claim of privilege [it] shall be stayed automatically until the full adjudication by the Court of any objections of the Party claiming the privilege.” (Doc. #154 at ¶5). [7] The Clawback Agreement, which was executed by the Parties in April and May of 2014, was attached as an exhibit to Boeing's Motion to Compel. [8] In consultation with the Court it was decided that there is no need to hold up challenges to claims of privilege while the Parties take steps, if any, to object to this Report and Recommendation.