On July 28, 2009, Chief ALJ Paul J. Luckern issued Order No. 8 in Certain Energy Drink Products (Inv. No. 337-TA-678).  In the Order, ALJ Luckern granted complainants Red Bull GmbH and Red Bull North America, Inc.’s (collectively, “Red Bull”)  motion to modify the protective order (Order No. 2) to address the inadvertent disclosure of documents and things subject to the attorney-client privilege or work product immunity by adding a claw-back provision.  Respondents India Imports Inc., Washington Food and Supply of D.C., Inc., and Vending Plus, Inc. (collectively, “Respondents”) opposed the motion, and the Commission Investigative Staff did not take a position on the motion.

In the Order, ALJ Luckern acknowledged that he has included similar claw-back provisions in the past, but never where there was opposition to such provision.  As stated in the Order, Respondents argued that the inclusion of the proposed claw-back provision would invite discovery abuses and that the proposed claw-back provision is “a rule that confers the greatest benefits on the party with the largest number of documents to produce, viz. complainants.”  ALJ Luckern noted that the proposed claw-back provision is standard in protective orders in both federal district court cases and section 337 investigations, and further noted that Red Bull had represented that they have reviewed their documents for privilege prior to producing them.

ALJ Luckern granted Red Bull’s motion “with the proviso that lead counsel of a party producing any documents furnish any party requesting documents a sworn declaration prior to production that the party producing said documents has conducted a privilege review prior to said production.”