IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION 

JOSEPH HEBERT, individually and on 

behalf of all others similarly situated,

Plaintiffs,

v.

CHESAPEAKE OPERATING, INC. 

AND CHESAPEAKE 

OPERATING, LLC,

Defendants.

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NO. 2:17-CV-00852-GCS-KAJ

AGREED CLAWBACK ORDER 

Pursuant to Federal Rules of Evidence 502(d) and (e), Plaintiff Joseph Hebert 

(“Plaintiff”) and Defendants Chesapeake Operating, Inc. and Chesapeake Operating, LLC 

(“Chesapeake” or “Defendants”) (hereinafter, the “Parties”) agree to and the Court orders the 

protection of privileged and otherwise protected documents against claims of waiver (including 

as against third parties and in other federal and state proceedings), as follows: 

a. The disclosure or production of documents by a Producing Party subject to a 

legally recognized claim of privilege, including without limitation the attorneyclient privilege and the work-product doctrine, to a Receiving Party, shall in no 

way constitute the voluntary disclosure of such document.

b. The inadvertent disclosure or production of any document in this action shall not 

result in the waiver of any privilege, evidentiary protection or other protection 

associated with such document as to the Receiving Party or any third parties, and

shall not result in any waiver, including subject matter waiver, of any kind.

c. If, during the course of this litigation, a party determines that any document 

produced by another party is or may reasonably be subject to a legally 

recognizable privilege or evidentiary protection (“Protected Document”):

i. the Receiving Party shall: (A) refrain from reading the Protected 
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Document any more closely than is necessary to ascertain that it is 

privileged or otherwise protected from disclosure; (B) immediately notify 

the Producing Party in writing that it has discovered documents believed 

to be privileged or protected; (C) specifically identify the Protected 

Documents by Bates number range or hash value, and, (D) within ten (10) 

days of discovery by the Receiving Party, return, sequester, or destroy all 

copies of such Protected Documents, along with any notes, abstracts or 

compilations of the content thereof. To the extent that a Protected 

Document has been loaded into a litigation review database under the 

control of the Receiving Party, the Receiving Party shall have all 

electronic copies of the Protected Document extracted from the database. 

Where such Protected Documents cannot be destroyed or separated, they 

shall not be reviewed, disclosed, or otherwise used by the Receiving Party. 

Notwithstanding, the Receiving Party is under no obligation to search or 

review the Producing Party’s documents to identify potentially privileged 

or work product Protected Documents.

ii. If the Producing Party intends to assert a claim of privilege or other 

protection over documents identified by the Receiving Party as Protected 

Documents, the Producing Party will, within ten (10) days of receiving the 

Receiving Party’s written notification described above, inform the 

Receiving Party of such intention in writing and shall provide the 

Receiving Party with a log for such Protected Documents that is consistent 

with the requirements of the Federal Rules of Civil Procedure, setting 

forth the basis for the claim of privilege or other protection. In the event 

that any portion of a Protected Document does not contain privileged or 

protected information, the Producing Party shall also provide to the 

Receiving Party a redacted copy of the document that omits the 

information that the Producing Party believes is subject to a claim of 

privilege or other protection. 

d. If, during the course of this litigation, a party determines it has produced a 

Protected Document:

i. the Producing Party may notify the Receiving Party of such inadvertent 

production in writing, and demand the return of such documents. Such 

notice shall be in writing, however, it may be delivered orally on the 

record at a deposition, promptly followed up in writing. The Producing 

Party’s written notice will identify the Protected Document inadvertently 

produced by bates number range or hash value, the privilege or protection 

claimed, and the basis for the assertion of the privilege and shall provide 

the Receiving Party with a log for such Protected Documents that is 

consistent with the requirements of the Federal Rules of Civil Procedure, 

setting forth the basis for the claim of privilege or other protection. In the 

event that any portion of the Protected Document does not contain 
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privileged or protected information, the Producing Party shall also provide 

to the Receiving Party a redacted copy of the document that omits the 

information that the Producing Party believes is subject to a claim of 

privilege or other protection. 

ii. The Receiving Party must, within ten (10) days of receiving the Producing 

Party’s written notification described above, return, sequester, or destroy 

the Protected Document and any copies, along with any notes, abstracts or 

compilations of the content thereof. To the extent that a Protected 

Document has been loaded into a litigation review database under the 

control of the Receiving Party, the Receiving Party shall have all 

electronic copies of the Protected Document extracted from the database.

e. To the extent that the information contained in a Protected Document has already 

been used in or described in other documents generated or maintained by the 

Receiving Party prior to the date of receipt of written notice by the Producing 

Party as set forth in paragraphs (c)(ii) and (d)(i), then the Receiving Party shall 

sequester such documents until the claim has been resolved. If the Receiving 

Party disclosed the Protected Document before being notified of its inadvertent 

production, it must take reasonable steps to retrieve it.

f. The Receiving Party’s return, sequestering or destruction of Protected Documents 

as provided herein will not act as a waiver of the Receiving Party’s right to move 

for the production of the returned, sequestered or destroyed documents on the 

grounds that the documents are not, in fact, subject to a viable claim of privilege 

or protection. However, the Receiving Party is prohibited and estopped from 

arguing that:

i. the disclosure or production of the Protected Documents acts as a waiver 

of an applicable privilege or evidentiary protection;

ii. the disclosure of the Protected Documents was not inadvertent;

iii. the Producing Party did not take reasonable steps to prevent the 

disclosure of the Protected Documents; or

iv. the Producing Party failed to take reasonable or timely steps to rectify the 

error.

g. Either party may submit Protected Documents to the Court under seal for a 

determination of the claim of privilege or other protection. The Producing Party 

shall preserve the Protected Documents until such claim is resolved. The 

Receiving Party may not use the Protected Documents for any purpose absent this 

Court’s Order.
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h. Upon a determination by the Court that the Protected Documents are protected by 

the applicable privilege or evidentiary protection, and if the Protected Documents 

have been sequestered rather than returned or destroyed by the Receiving Party, 

the Protected Documents shall be returned or destroyed within 10 (ten) days of 

the Court’s order. The Court may also order the identification by the Receiving 

Party of Protected Documents by search terms or other means.

i. Nothing contained herein is intended to, or shall serve to limit a party’s right to 

conduct a review of documents, data (including electronically stored information) 

and other information, including without limitation, metadata, for relevance, 

responsiveness or the segregation of privileged or protected information before 

such information is produced to another party.

j. By operation of the parties’ agreement and Court Order, the parties are 

specifically afforded the protections of Federal Rules of Evidence 502 (d) and (e).

IT IS SO ORDERED.

Date: February 12, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE
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Dated: February 9, 2018

/s/Michael A. Josephson

Michael A. Josephson

Josephson Dunlap Law Firm

11 Greenway Plaza

Suite 3050

Houston, Texas 77046

mjosephson@mybackwages.com

Texas State Bar No. 24014780

Richard M. Schreiber

Josephson Dunlap Law Firm

11 Greenway Plaza

Suite 3050

Houston, Texas 77046

rschreiber@mybackwages.com

Texas State Bar No. 24056278 

Robert E. DeRose, II

Barkan Meizlish Handelman Goodin DeRose 

Wentz, LLP

250 E. Broad St., 10th Floor

Columbus, Ohio 43215

bderose@barkanmeizlish.com

Bar No. 0055214

ATTORNEYS FOR PLAINTIFFS JOSEPH 

HEBERT, INDIVIDUALLY AND ON 

BEHALF OF ALL OTHERS SIMILARLY 

SITUATED

Agreed By:

/s/ David B. Jordan

David B. Jordan (Attorney-in-Charge)

State Bar No. 24032603

S.D. Tex. No. 40416

djordan@littler.com

Allison C. Williams

State Bar No. 24075108

S.D. Tex. No. 1138493

acwilliams@littler.com

State Bar No. 24087255

S.D. Tex. No. 2330468

pcantrell@littler.com

LITTLER MENDELSON, P.C.

1301 McKinney Street, Suite 1900

Houston, Texas 77010

Alex R. Frondorf

afrondorf@littler.com

LITTLER MENDELSON, P.C.

1100 Superior Avenue, 20th Floor

Cleveland, Ohio 44114

216.696.7600 (Telephone)

216.696.2038 (Facsimile)

ATTORNEYS FOR DEFENDANTS 

CHESAPEAKE OPERATING, INC. 

AND CHESAPEAKE OPERATING, LLC