Hooksett Sewer Commission v. Penta Corp., 121216 NHSUP, 2013-CV-00540

Docket Nº:2013-CV-00540
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:Hooksett Sewer Commission v. Penta Corporation, et al
Case Date:December 12, 2016
Court:Superior Court of New Hampshire

Hooksett Sewer Commission


Penta Corporation, et al

No. 2013-CV-00540

Superior Court of New Hampshire, Merrimack

December 12, 2016



Richard B. McNamara, Presiding Justice

Plaintiff Hooksett Sewer Commission ("Hooksett") has filed a Motion for a Protective Order seeking an Order that the Court find that a document produced by Defendant I. Kruger, Inc. ("Kruger") is not privileged, because any privilege applicable to it has been waived. For the reasons stated in this Order, the Motion is GRANTED.


This litigation arises out of construction of a waste water treatment plant in Hooksett, New Hampshire. Suit was brought in September, 2013. In December, 2013 the parties to this litigation, including Kruger, agreed to exchange documents in their possession regarding the Hooksett plant. Pursuant to this agreement, Kruger produced approximately 6500 files on December 17, 2013 to all of the parties to this litigation. All of the files were produced electronically by providing flash drives to counsel. On March 20, 2014, then counsel for Kruger sent a memorandum to all counsel seeking to claw back its entire production on the grounds that Kruger had neglected to exclude purportedly privileged documents. Mot. for Prot. Order, Ex. A. A memorandum from Kruger's counsel stated in relevant part: As you know, due to a programming difficulty with our document management system, our initial production of documents in the Hooksett matter contained privileged communications, two of which we have already clawed back pursuant to our agreement. It now appears that the programming error was more severe than we had originally understood. Therefore I am going to need to claw back additional documents from the production.

Kruger's counsel requested that all electronic files be returned, and stated it would "have those drives reformatted to produce the documents without the privileged communications and, of course, provide an updated privilege log". Mot. for Prot. Order, Ex. A. In March, 2015 Kruger obtained new counsel. According to Kruger, it completed a review of the documents clawed back and produced 4, 512 documents...

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