Clawback Orders, Protective Orders, and Sealed Documents

(a) Clawback Orders. At the court’s request, or if the parties jointly agree to the entry of an order governing the clawback of privileged or protected materials that are inadvertently disclosed, the parties should complete and submit one of the following orders, which are preferred by the court: Order Governing the Inadvertent Disclosure of Documents and Materials under Rule 502(b), available on-line at www.wvsd.uscourts.gov, or Order Governing the Inadvertent Disclosure of Documents and Materials under Rule 502(d), also available on-line. Motions seeking to modify the provisions of the approved clawback orders should be made sparingly and only for good cause. (b) Protective Orders.

To succeed on a motion for the entry of a protective order shielding information from dissemination, the movant or movants must demonstrate with specificity that (1) the information qualifies for protection under FR Civ P 26(c), and (2) good cause exists for restricting dissemination on the ground that harm would result from its disclosure. When filing a joint motion for the entry of a protective order, the movants shall complete and submit with the motion the court’s on-line Protective Order found at www.wvsd.uscourts.gov. The court’s on-line Protective Order is the preferred protective order in this district. Therefore, motions requesting modifications to the provisions of the court’s Protective Order should be made sparingly and only for good cause.

(c) Sealed Documents. (1) General. The rule requiring public inspection of court documents is necessary to allow interested parties to judge the court=s work product in the cases assigned to it. The rule may be abrogated only in exceptional circumstances.

Page 26 of 83 (2) Submission. Unless otherwise authorized by law, a motion to seal shall be filed electronically pursuant to the Administrative Procedures for Electronic Case Filing and accompanied by a memorandum of law which contains: (A) the reasons why sealing is necessary, including the reasons why alternatives to sealing, such as redaction, are inadequate; (B) the requested duration of the proposed seal; and (C) a discussion of the propriety of sealing, giving due regard to the parameters of the common law and First Amendment rights of access as interpreted by the Supreme Court and our Court of Appeals. LR Civ P 26.5 Discovery of Electronically Stored Information (a) Prior to a Rule 26(f) conference, each party shall individually assess the likelihood that its ESI will play a role in discovery. When a party in possession of ESI reasonably anticipates, or should anticipate, that its ESI will play a significant role, the party shall complete the following tasks for discussion at the Rule 26(f) conference: (1) determine how and where its ESI is stored; how it has been or can be preserved, accessed, retrieved, and produced; and any other issues to be discussed at the Rule 26(f) conference including the issues set forth in subparagraph (c) below; and (2) identify a person or persons with knowledge about the ESI, with the ability to facilitate, through counsel, the preservation and discovery of ESI.

(b) At the Rule 26(f) conference, counsel shall meet and confer about: (1) the steps the parties have taken to preserve ESI; (2) the anticipated scope of ESI discovery and the search protocol for locating responsive ESI, including methods to filter the data, such as using search terms or date ranges; (3) procedures to deal with inadvertent production of privileged information; (4) accessibility of ESI, including but not limited to the accessibility of back- up, deleted, archival, or historic legacy data; (5) the media, format and procedures for preserving and producing ESI; Page 27 of 83 (6) (7) allocation of costs of preservation, production, and restoration (if possible and/or necessary) of any ESI; the need for a designated resource person through who all issues relating to the preservation and production of ESI should be addressed; (8) the need for an Order setting out the ESI protocol; and (9) any other issues related to the discovery of ESI.