IN RE: TARGET CORPORATION CUSTOMER DATA SECURITY BREACH LITIGATION This Document Relates to All Actions MDL No. 14-2522 (PAM/JJK) United States District Court, D. Minnesota Signed May 05, 2015 Keyes, Jeffrey J., United States Magistrate Judge ORDER AND MEMORANDUM *1 This matter is before the Court on the Joint Plaintiffs’[1] Motion for Relief from or Modification to the Protective Order or, in the Alternative, to Compel the Production of Improperly Clawed Back Documents. (Doc. No. 299.) The Court previously issued an Order giving Defendant Target Corporation (“Target”) an opportunity to supplement the record relevant to the plaintiffs' argument that Target has waived the attorney-client privilege and work-product protection for more than 3,000 documents that Target produced during discovery in this multi-district litigation and previously disclosed to various federal and state government entities. (Doc. No. 344.) Based on the record, as supplemented by Target, IT IS HEREBY ORDERED that: 1. The plaintiffs' Motion for Relief from or Modification to the Protective Order or, in the Alternative, to Compel the Production of Improperly Clawed Back Documents (Doc. No. 299), is DENIED to the extent it seeks an order concluding that Target has waived the attorney-client privilege and work-product protection for the documents at issue. The motion is also denied to the extent the plaintiffs request to be relieved from any obligation to return or destroy any copies of the 3,095 documents at issue. The plaintiffs must destroy any and all copies of the 3,095 documents at issue in Target’s claw-back request as well as all work-product derived from those documents. The plaintiffs must complete the return and destruction of these documents, copies, and work-product within fourteen days of the date of this Order. 2. When the plaintiffs have located and destroyed the copies of the 3,095 documents at issue in Target’s claw-back request and all the derivativework-product derived from those clawed-back documents as required bythis Memorandum and the accompanying Order, plaintiffs shall provide Target with an itemization of the time expended and the costs they incurred, including any attorneys' fees, in searching for the emails and other electronically stored documents, as well as any paper documents, that may contain copies and derivative work-product from any of the items on Target’s claw-back request. Upon receipt of that itemization, Target shall reimburse the plaintiffs for their reasonable expenses incurred in complying with the Protective Order; and?? 3. The attached Memorandum is incorporated in this Order. MEMORANDUM This matter is before the Court on the plaintiffs' Motion for Relief from or Modification to the Protective Order or, in the Alternative, to Compel the Production of Improperly Clawed Back Documents. (Doc. No. 299.) At issue in the plaintiffs' motion are 3,095 documents that Target produced in this litigation and which Target now seeks to “claw back” under the terms of the Protective Order, which the Court issued based on the parties' stipulation on June 25, 2014. (Doc. No. 92, Protective Order.) To allow for “expeditious production of documents,” the Protective Order allowed Target to produce documents without first conducting a “detailed, or any, review to determine whether the production includes Privileged Material.” (Id. ¶ IX.) If Target chose to make such an expedited production of documents and unintentionally disclosed privileged material to the plaintiffs, Target was required to “promptly notify [the plaintiffs] following discovery of the production,” and the plaintiffs' response was governed by the following language: *2 [the Receiving Party, which in this case is the plaintiffs] (1) shall in the case of Privileged Material, (i) return or destroy the disclosed document or information forthwith, as well as any and all copies thereof, and (ii) destroy any references to the erroneously or inadvertently disclosed document or its contents to the extent such references exist in other materials prepared by the Returning Party. (Id. ¶ X.) Thus, the Protective Order provided a mechanism for getting documents in the hands of a requesting party quickly, but it also protects a producing party’s ability to “claw back” privileged or protected documents that have been inadvertently produced because the producing party elected to use a less than detailed review process, or no review process at all. Pursuant to this provision in the Protective Order, Target made a “claw back” request to the plaintiffs in this MDL proceeding on January 12, 2015. The following discussion describes the events that led up to Target’s production of material over which it claims privilege and work-product protections apply its claw-back request, and other information relevant to the issues raised by the plaintiffs' motion. This is based on several submissions by Target, including: (1) the February 16, 2015 Declaration of Mark David McPherson (“2/16/15 McPherson Decl.”) (Doc. No. 322); (2) the February 16, 2015 Declaration of David F. McDowell (“2/16/15 McDowell Decl.”) (Doc. No. 323); (3) the February 16, 2015 Declaration of Randall J. Fons (“2/16/15 Fons Decl.”) (Doc. No. 324); (4) February 20, 2015 Supplemental Declaration of Randall J. Fons (“Suppl. Fons Decl.”) (Doc. No. 338); (5) the March 13, 2015 Declaration of David F. McDowell (“3/13/15 McDowell Decl.”) (Doc. No. 351); and (6) the Second Supplemental Declaration of Randall J. Fons (“Second Suppl. Fons Decl.”) (Doc. No. 352). Shortly after the December 19, 2013 data-breach incident occurred that precipitated this litigation, Target set up a Data Breach Task Force through the law firm of Morrison & Foerster, which it retained to defend against consumer class actions. The task force was staffed by Morrison & Foerster attorneys and various non-lawyer Target employees, who did both privileged work for the Task Force and other work that was regularly required by their positions at Target. The Task Force oversaw investigation of the data breach and third-party consultants who were hired to assist in the investigation. The lawyers involved in the Task Force took the lead on the investigation and explained to everyone else involved that they needed to maintain the confidentiality of their work. Morrison & Foerster also retained Verizon in December 2013 to assist in the investigation and remediation of the data breach. Verizon was tasked with providing forensic analysis, systems testing, and other services to help Target’s in-house and outside counsel provide Target with legal advice relating to the data breach. With one exception (a report prepared for credit card issuers) Verizon performed its work at the direction of Target’s in-house and outside counsel and agreed to keep its work confidential. On February 6, 2014, Target received a subpoena from the Securities and Exchange Commission (“SEC”). The SEC subpoena sought production of many documents by February 21, 2014. Target and the SEC agreed on a list of custodians that would likely have documents responsive to the SEC’s subpoena and on a list of search terms that would be run against Target’s electronically stored information to help identify relevant documents. Target collected over 1.7 million documents by March 27, 2014, in response to the subpoena, and Target began working with an e-discovery vendor to obtain a smaller set of those documents to review. That process resulted in approximately 230,000 documents identified for review. *3 Target set up a process for reviewing its documents to determine whether they were responsive to the SEC’s subpoena or protected by some form of privilege or work-product protection. Target used attorneys who conducted a “first-level” review to identify both responsive and privileged documents. These reviewers included approximately 40 contract attorneys. These reviewers worked in an electronic review platform in an attempt to review many thousands of documents more efficiently than if they were reviewed in physical form. The documents that the first-level reviewers flagged were then reviewed a second time by more senior attorneys prior to production to the SEC. These second-level reviewers included several attorneys from Morrison & Foerster. Both the first and second-level reviewers were overseen by additional Morrison & Foerster attorneys. Target provided the reviewers with lists of names (including attorneys' names and the names of non-attorneys working at counsel’s direction) that would give rise to privilege concerns. The vendor hired by Target’s counsel to host Target’s document review platform was provided with a list of those names. The vendor was able to automatically highlight the names on that list within the document review platform so that reviewers could easily spot documents in which those individuals were involved. Thus, the documents in the review platform were “pre-populated” with an indication that they were privileged if a name on the list appeared in the document. The reviewers also received training to identify privileged documents. Target provided the reviewers with a memorandum regarding the SEC investigation and a document-review protocol. The memorandum explained how reviewers could tag privileged documents in the review platform as privileged, and it also permitted them to remove a pre-populated privilege tag only if the document was clearly not privileged. In addition to the list of names that Target provided to the e-discovery vendor and its reviewers, Target’s e-discovery vendor pre-populated several documents as privileged if the documents included the following privilege-related terms: affidavit, attorney, attorney client, compliance, counsel, deposition, discovery, esq, esquire, law, legal, litigation, negotiation, priv, privilege, regulation, regulatory, relevant, relevance, settlement, subpoena, and work product. Target began its first-level review on April 8, 2014, and Target produced documents on a rolling basis to the SEC from April 24, 2014 to July 22, 2014. During the course of the first and second-level reviews, the members of the review team identified additional names that could give rise to privilege concerns. Whenever this occurred, Morrison & Foerster would provide an updated list of names for the e-discovery vendor to highlight in the review platform. This process of identifying additional names raising privilege concerns led to revised searches and to Target clawing back 11 documents from the SEC in July 2014, and another 230 documents in October 2014. Target never produced these documents to the plaintiffs in this action. During its review, Target did not run searches in the platform for “Data Breach Task Force” and “Verizon” against the population of documents they were reviewing. Target determined that running such a search would be both under-inclusive and over-inclusive because it would have both missed documents that were privileged, but lacked either of these terms, and included documents that were not protected, but which did include those terms. Not every Task Force document included a legend indicating that it was related to the Data Breach Task Force. And other documents relating to Verizon would have been flagged despite no basis for claiming privilege. After Target completed that review process and produced documents to the SEC, Target also produced a number of documents to the Federal Trade Commission (“FTC”) and to the attorneys general of several states, each of which had requested documents from Target about the data-security breach. (Collectively the Court refers to these non-parties as the “government entities”). Target’s review process for the FTC and the states' attorneys general were based on a similar review process used for the SEC production. *4 Target’s counsel in connection with the production to the government entities later learned that more than 3,000 privileged or protected documents had been produced to the SEC. Of the 3,095 privileged or protected documents produced to the SEC, Target also produced over a smaller subset of these privileged documents to the other government entities. Before Target’s counsel became aware that Target’s production to the government entities contained a large number of allegedly privileged material, Target produced approximately 39,000 documents to the plaintiffs in this litigation on October 20, 2014. Target produced the same material to the plaintiffs that Target had previously given to the SEC. Because Target had already conducted a review before making its disclosure to the SEC and the other government entities, Target did not conduct an additional privilege review of the same discovery material before making its production to the plaintiffs in this MDL proceeding. Target chose not to conduct such a review because it believed it would be inefficient to do so, especially since the Protective Order allowed Target to produce documents without conducting any privilege review at all, subject to a right to make a claw-back request, as described above. As a result of Target’s decision not to conduct another review prior to producing documents to the plaintiffs, and due to the errors in its earlier review process identified by Mr. Randall J. Fons in his declarations relating to the plaintiffs' motion, Target asserts that it unintentionally produced to the plaintiffs the same allegedly privileged and protected material that Target provided to the government entities. In September 2014, the SEC issued subpoenas to take the testimony of ten Target witnesses. In the process of preparing for those witnesses' testimony during November 2014, Target reviewed the documents it had produced to the SEC and discovered that numerous privileged documents had been included in that production. Immediately after the Morrison & Foerster attorney overseeing the document production to the SEC and other government entities, Mr. Randall J. Fons, realized these privileged documents had been produced, he instructed the attorneys and legal assistants on the SEC review team to investigate and identify privileged documents that might have been produced to the SEC. Mr. Fons and the review team then worked with the e-discovery vendor to figure out what the errors were in the review process that led to the production of privileged and protected material. Through that investigation, Target realized that when it conducted its review prior to production to the SEC, its review team received an incomplete list of attorneys' names, and the names of non-attorneys working at counsel’s direction, to include in the privilege review. The list that Target used during its review omitted several names that it should have included. This was the primary reason so many privileged documents were produced in the production to the SEC, and then to the other government entities. In addition, a technical glitch in the document review platform resulted in some reviewers being unable to see the header and footer panes in some documents that included attorney-client or work-product privilege legends. Because of these errors in the review process, Target inadvertently produced a large number of documents, first to the SEC and later to the other government entities. *5 After Mr. Fons realized why Target’s initial review missed a large number of privileged and protected documents Target then ran revised searches against the set of documents it collected in response to the SEC subpoena, including the additional names of lawyers and non-lawyers it realized had been excluded from the previous review. From November 20, 2014, through December 13, 2014, Target re-reviewed large portions of the SEC production based on the results of the revised searches. On December 13, 2014, Mr. Fons informed Target’s counsel in this MDL proceeding that privileged documents that had been produced to the SEC were likely included in the production to the plaintiffs in this action. Target’s counsel in this action then re-reviewed the documents it had produced to the plaintiffs. By January 12, 2015, Target’s counsel in this MDL proceeding completed that review and confirmed that Target had indeed produced a large number of privileged or protected documents to the plaintiffs. On January 12, 2015, Target informed the plaintiffs that it had produced over 4,000 privileged documents. (Target later pared that list down to the 3,095 documents at issue in the motions now pending before the Court.) Target demanded that the plaintiffs return or destroy those documents, destroy any and all copies of those documents, and destroy any of the plaintiffs' own derivative work-product that referenced those documents or their contents. Because the plaintiffs believed it would be a significant burden to destroy or return such a large number of documents and to destroy all references to the documents or their contents in the plaintiffs' own derivative work product, and because the plaintiffs did not believe that the production of so many allegedly privileged documents could be inadvertent, as Target claimed it was, the plaintiffs sequestered the documents bearing the Bates numbers Target had identified in its claw-back request. This means that the plaintiffs' counsel have been unable to access those documents or otherwise review their contents since the sequestration occurred. However, the plaintiffs had previously used some of the allegedly privileged and protected documents during depositions in this case, and the plaintiffs' counsel had referenced, circulated, or otherwise used a significant number of the 3,095 documents at issue in their other work in this litigation. Thus, some of the plaintiffs' work product reflects the contents of some portion of the allegedly privileged documents. Target objected to the plaintiffs' sequestration of the material, and the parties contacted the Court for guidance on the procedures they should use to address this dispute. The Court instructed the parties to prepare and file motion papers addressing these issues, which the parties did. The Court held a hearing on these motions on February 24, 2015. After the February 24, 2015 hearing, the Court issued an Order giving Target an opportunity to supplement the record with additional information about its review process and giving the plaintiffs an opportunity to respond. The Court also denied Target’s request that the plaintiffs be required to immediately destroy all of the documents and any derivative work product that the plaintiffs generated using those privileged documents. The Court instead informed the parties that it would maintain the status quo until it issued an order following any supplementation of the record. (Doc. No. 344.) DISCUSSION I. Whether Target Waived Privilege Or Work-Product Protection The plaintiffs contend that the circumstances described above indicate that Target intentionally waived the attorney-client privilege and work-product protection for all 3,095 documents at issue. They contend that this waiver occurred because Target intentionally produced these documents to the government entities, and then, when it realized those documents may hurt its position in this litigation, the plaintiffs argue that Target changed its mind. Thus, the plaintiffs assert that there has been no inadvertent production in this case permitting Target to claw back the documents under the Protective Order, and the plaintiffs contend they should be able to use the documents in this litigation without limitation. (Doc. No. 327, Pls.' Mem. in Supp. of Mot. for Relief from Protective Order (“Pls.' Mem.”).) *6 To support their argument, the plaintiffs primarily rely on analysis of the factors described in Starway v. Indep. Sch. Dist. No. 625, 187 F.R.D. 595 (D. Minn. 1999). (See Pls.' Mem. 13-19.) In Starway, the court employed a multi-factor approach in determining whether privileged material that has been disclosed to another party in litigation must be returned to the producing party by its opponent. 187 F.R.D. at 597. That test asks a court to consider: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in light of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) the promptness of measures taken to remedy the problem; and (5) whether justice is served by relieving the party of its error. Id. (citing Gray v. Bicknell, 86 F.3d 1472, 1484 (8th Cir. 1996). Although Starway was a non-diversity case, applying the test set forth therein to the facts of this case, we conclude that Target has not waived its privilege and work-product claims for the documents at issue and that Target has adequately shown that its disclosure of these items was the result of inadvertent errors, and not an intentional waiver. A. The reasonableness of precautions and the extent of production Looking first to the reasonableness of the precautions taken in light of the extent of the document production, the Court concludes that this factor weighs heavily in favor of a finding that Target has not waived protection for its privileged and work-product documents. Target employed reasonable methods for reviewing electronically stored documents on a platform using an e-discovery vendor that could make the review process efficient and streamlined. This is customary in today’s world where so much information in the corporate setting is stored electronically and more easily accessed and reviewed electronically than through the painstaking shuffling of paper documents stuffed in bankers' boxes in a warehouse. It is also customary for litigants to use e-discovery review platforms to assist in highlighting or identifying potentially privileged documents. Here, Target’s counsel provided training to its own staff and contract attorneys that it hired to assist with the review on that e-discovery platform. Target included several search terms in its privilege review that are commonly associated with privileged and work-product documents. Target also used a list of attorney names and the names of non-attorneys working at the direction of counsel. All of this helped pre-populate the electronic database of potentially responsive documents with indications that certain documents were privileged. These are also reasonable precautions to protect attorney-client-privileged communications and confidential work-product. Despite these precautions, Target left several names off the list of attorneys and non-attorneys working at counsel’s direction that it provided to the reviewers and the e-discovery vendor. As a result, the vendor could not pre-populate the database with those omitted names to create automatically flagged documents, and the reviewers would not have known that those names raised privilege concerns because they had not seen them. For the majority of the documents at issue, this was the mistake that led to disclosure of protected information. Some of the documents that were produced could have been spotted by reviewers if the review platform had shown them headers and footers bearing privilege or work-product legends, but that did not happen due to a glitch in the program. Although these mistakes led to the production of a large number of documents for which privilege and work-product protections have now been asserted, there is no basis in the record for the Court to conclude that, as plaintiffs contend, Target acted unreasonably in developing its approach to conducting a privilege review. Nor is there any basis in the record for the Court to conclude that Target intentionally disclosed the information at issue to the government entities believing that it would be helpful to do so in the context of those entities' requests, and then changed its mind when it thought it would be beneficial to do the opposite here. The plaintiffs essentially speculate as to Target’s real motivation, and essentially ask the Court to assume that Target’s counsel, in responding to the plaintiffs' motion, have not been forthright with the Court. Here, the evidence Target has submitted tells a different story, and plaintiffs have cited no reason, and we see none in the record, to question the credibility of Target’s counsel. *7 Nor is this a case where Target just abandoned its obligation to protect privileged or protected information despite the universe of documents at issue being relatively manageable. In evaluating the reasonableness of precautions taken, the court in Starway concluded that “erroneous disclosure is in itself evidence that greater care should have been taken in the document review, [but] the task was not placed in the hands of not-lawyer staff[.]” 187 F.R.D. at 597. Moreover, the court in Starway noted that the production at issue in that case was “not massive,” but involved a “significant number of documents” where the production at issue included “541 single-sided pages ... produced in response to ten requests for production.” Id. Here, as in Starway, although the production of the privileged and protected material could, in itself, be evidence that greater care could have been taken to include all the relevant names in its privilege review, Target did not place its privilege and work-product review in the hands of non-lawyers. Instead, it hired several contract attorneys, staffed the review project with attorneys employed by a large law firm, and had senior attorneys oversee the entire process. At the same time, in this case, the production was orders of magnitude larger than that at issue in Starway. Target identified custodians and came up with a reasonable set of search terms, which the SEC agreed would provide responsive information, and as a result of this process, Target collected over 1.7 million documents and culled that population down to 230,000 documents to be reviewed. Reviewing 230,000 documents is no small undertaking. The Court has not lost sight of the fact that Target made its massive production to the SEC while responding to intense pressure for disclosure of vast quantities of information on an extremely tight schedule. The disclosure to the plaintiffs in this action also included around 39,000 documents, and Target made that production in an effort to get information to the plaintiffs as quickly as possible. Target did so after negotiating a protective order that allowed it to produce documents after an expedited review, or without privilege or work-product review occurring at all, subject to a claw back provision. Given the realities of this case, therefore, Target’s approach to the production of documents and its privilege and work-product review was reasonable. Further, Target has provided a reasonable explanation for why the Data Breach Task Force and Verizon terms were not included in the privilege review list. The Court questioned Target at the hearing about how it was that documents relating to the Task Force and Verizon’s investigation could have been disclosed if reasonable precautions had been taken to protect information relating to those items. Target’s approach was to search for information responsive to the SEC’s subpoena according to lawyer names and other terms that would have alerted reviewers to privilege and work-product concerns rather than to search for the terms “Data Breach Task Force” and “Verizon.” Had it done the latter, Target has adequately demonstrated that documents relating to the Task Force and Verizon would either have still slipped past the reviewers because not every document related to those investigatory issues would have included the search terms, and therefore would not have been flagged in the review platform. Target has also adequately demonstrated that some documents for which privilege or work-product claims would not have been appropriate may have been flagged as protected, which would have made the review process less efficient. While including those terms may have resulted in privileged or work-product protected information being identified, as plaintiffs contend, this does not mean that Target’s choice not to include those terms was unreasonable, given the pressure it faced from the SEC for quick production and its need to comply with all the government entities' document requests. B. The number and extent of disclosures *8 In evaluating the second and third factors concerning the scope of inadvertent disclosures, the court in Starway examined whether “[t]he number of inadvertent disclosures ... is ... indicative of extreme lack of care or wholesale indifference to the task of sorting documents.” 187 F.R.D. at 597. There is no dispute here that Target produced over 3,000 documents for which it is claiming privilege or work-product protection. This number is significantly larger than the “minimal” number of documents at issue in Starway. However, even though this case involves a large number of disclosures, the size of the disclosure alone does not necessarily mean that Target took inadequate measures to protect its documents, had an extreme lack of care, or was indifferent to the task of sorting privileged from unprotected material. We have detailed above the extent to which Target attempted to protect its privileged and work-product protected material, and in evaluating the scope and extent of the disclosure of allegedly protected material at issue here, the specific circumstances of this case must be taken into account. Target was responding to the SEC’s very short timeline for compliance with a subpoena that sought the production of many hundreds of thousands of pages of documents. Thus, even though the number of documents Target now seeks to claw-back under the Protective Order appears quite high, these factors do not weigh in favor of finding that Target waived its privilege and work-product protections. C. Promptness of measures taken to correct the error In Starway, the court noted that the promptness of the defendants' attempts to correct its errors of disclosing the privileged material to the plaintiff weighed against a finding of waiver. 187 F.R.D at 598. There, the defendants notified the plaintiff immediately upon notice of the error and made a demand for return of the documents at that time. Id. That immediate notice and demand was both prompt and appropriate, but there is no bright-line rule as to this factor. There is no dispute that Target’s counsel in this MDL proceeding first learned that the 3,095 documents containing privileged material and work-product had been produced in this litigation on December 13, 2014. They learned this when Mr. Fons, Target’s counsel in dealing with the government entities' requests for information relating to the data breach, alerted Target’s counsel in this case that protected information had been produced to the SEC, and thus was likely also produced to the plaintiffs. Target then conducted review of all the documents produced to the plaintiffs in this litigation to confirm the scope of the production of privileged and work-product protected materials. This took Target a month to complete, which given the size of the production to the plaintiffs in this case, was not unreasonable. Although this resulted in a one-month delay in the plaintiffs being notified of the erroneous production, given the need for Target’s counsel handling this litigation to review its production to ascertain the scope of the disclosure and make a comprehensive claw-back request, Target’s efforts to remedy the inadvertent disclosure were prompt and adequate. The plaintiffs argue that Target actually became aware of the disclosure of privileged or protected material sooner than December 13, 2014, and point to early November 2014, when Mr. Fons discovered that the SEC production had included some of the documents at issue. (Doc. No. 369, Pls.' Suppl. Mem. in Response to Target’s Additional Evidence Submitted Pursuant to Court Order of Feb. 25, 2012 at 8-9.) Mr. Fons’s declaration provides that he first discovered the potential disclosure of privileged and work-product materials among the documents produced to the SEC in November 2014 while preparing for testimony of witnesses subpoenaed by the SEC. His team then spent approximately one month, until December 13, 2014, reviewing the documents produced to the SEC. Once that review had been completed, Mr. Fons told Target’s counsel in this action about the possibility that the production to the plaintiffs in this case included the privileged and protected material that was made to the plaintiffs. That is what spurred Target’s lawyers in this case into action, and they spent a month conducting their own review. The time Mr. Fons spent looking through the documents produced to the SEC from November to December 2014, and the month that Target’s lawyers in this case spent examining the documents produced to the plaintiffs was proper. Given the number of documents at issue, a prompt response to the discovery of inadvertent production of privileged and protected material should have included some time to determine the scope of the inadvertent disclosure. Target’s counsel took a reasonable amount of time to figure out just which documents were at issue. Doing so allowed them to make comprehensive claw-back requests to both the SEC and the plaintiffs in this case. These steps were reasonable, the delay was not significant, and there is no sign that Target was intentionally dilatory or used the delay to gain some tactical advantage. Accordingly, this factor weighs in favor of finding that Target did not waive its privilege or work-product claims. D. The interests of justice *9 The final Starway factor considers “whether justice is served by relieving the party of its error.” 187 F.R.D. at 597. In Starway, the court concluded that the interests of justice did not weigh in favor of the plaintiff, to whom the privileged document was inadvertently disclosed, “where the outcome of the dispute is to deny him something to which he was never entitled” in light of the fact that there was no dispute that the document was privileged. Id. Here, there may be a dispute that some of the 3,095 documents at issue are not privileged or protected by the work-product doctrine. (Pl.'s Mem. 21-40 (arguing that the court should compel production of certain clawed back documents because Target failed to adequately assert privilege or work-product protection and because the clawed-back documents do not qualify for the claimed protections from discovery); Doc. No. 344, Feb. 25, 2015 Order (denying without prejudice the plaintiffs' request for an in camerareview of specific documents on grounds that the parties had not exhausted their meet and confer obligations over this dispute).) Nevertheless, this factor weighs in Target’s favor because justice is served by relieving Target of its error in disclosing the documents at issue here. Target took reasonable precautions, detailed above, to protect its privileged and work-product information. There is no reason to punish Target for an error that occurred under the circumstances here. Again, Target’s initial review took place under immense pressure from the government entities, primarily the SEC, to provide a large number of documents in a very short period. And Target’s production in this case occurred after it negotiated a Protective Order that gave it the ability to produce documents without conducting any review at all, subject to the precise claw-back provision it now invokes. It makes no sense, under these circumstances, to give the plaintiffs access to a swath of information to which they may never have been entitled, simply because Target made mistakes during its review that led to a large disclosure of privileged and protected material. E. Conclusion For all these reasons, the Court concludes that Target has not waived the attorney-client privilege or the work-product protection for all of the 3,095 documents that it has attempted to claw-back in this proceeding. Target took reasonable steps to protect against the disclosure of such information, but inadvertently disclosed it to various government agencies and to the plaintiffs in this litigation. Because that disclosure was inadvertent, the plaintiffs must now comply with the Protective Order and Target’s claw-back request. II. Requiring Compliance with the Protective Order and Target to Pay the Plaintiffs' Expenses in Destroying Copies and Derivative Work-Product As a result of the conclusion in Part I of this Memorandum that Target has not waived attorney-client privilege or work-product protection for all 3,095 documents at issue, the plaintiffs must now return or destroy the documents at issue, and any and all copies of those documents. They must also destroy the derivative work-product the plaintiffs' attorneys have created by using the documents inadvertently produced. This step is required by the Protective Order in this case, which provides, in pertinent part that: The party that made the inadvertent or erroneous disclosure shall promptly notify the other party following discovery of the production, and that other party (the “Returning Party”) (1) shall in the case of Privileged Material, (i) return or destroy the disclosed document or information forthwith, as well as any and all copies thereof and (ii) destroy any references to the erroneously or inadvertently disclosed document or its contents to the extent such references exist in other materials prepared by the Returning Party. *10 (Doc. No. 92 ¶ X.B.) The plaintiffs have asked the Court to modify the Protective Order so that they are not required to go through this time-consuming and expensive process. (Doc. No. 327, Joint Pls.' Mem. in Supp. of Mot. for Relief from and Modification to the Protective Order 19-21.) The Court preserved the status quo in its February 25, 2015 Order following the hearing on this matter, allowing the plaintiffs to keep the clawed-back documents sequestered. (Doc. No. 344, Order at 3-4.) At the time, such an approach was appropriate because the Court had not yet reached the conclusion it has come to in Part I of this Memorandum and in the accompanying Order. However, now that the Court has concluded that there was no waiver here as to the 3,095 documents at issue, compliance with the Protective Order is appropriate. The Court recognizes that, as demonstrated by the plaintiffs, compliance with the Protective Order will be cumbersome, time-consuming, and potentially expensive. The plaintiffs did not create the situation that will lead to this diversion of resources. Target acknowledged at the February 24, 2015 hearing that its own errors were responsible for the burden and expense the plaintiffs will now incur in complying with the Protective Order, and Target offered to reimburse the plaintiffs for reasonable costs associated with that compliance. For these reasons, the Court concludes that there is good cause to require Target to reimburse the plaintiffs for the reasonable costs they will incur in complying with the Protective Order. Accordingly, when the plaintiffs have located and destroyed the copies of the 3,095 documents at issue in Target’s claw-back request and all the derivative work-product derived from those clawed-back documents as required by this Memorandum and the accompanying Order, plaintiffs shall provide Target with an itemization of the time expended and the costs they incurred, including any attorneys' fees, in searching for the emails and other electronically stored documents, as well as any paper documents, that may contain copies and derivative work-product from any of the items on Target’s claw-back request. Upon receipt of that itemization, Target shall reimburse the plaintiffs for their reasonable expenses incurred in complying with the Protective Order. Footnotes [1] The “Joint Plaintiffs’ ” motion is brought on behalf of both the financial institution plaintiffs and the consumer plaintiffs. Because this Order and Memorandum relates to all actions, the Court uses the term “the plaintiffs” to refer to all plaintiffs in this MDL proceeding.