Arc Ecology, et al v United States Maritime Administration, et al

Filing 65

STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 7/22/09 ORDERING that the foregoing 61 stipulation by the parties is hereby approved and entered as an ORDER of the Court. Nothing in this Stipulation and Order relieves the parties of completing discovery by the presently scheduled cutoff date-August 31, 2009.(Duong, D)

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JOHN C. CRUDEN Acting Assistant Attorney General Environment & Natural Resources Division LESLIE M. HILL MICHELLE R. LAMBERT Trial Attorneys United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington, DC 20044-3986 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail]; [e-mail] Attorneys for Defendants MICHAEL E. WALL (Cal. Bar No. 170238) NATURAL RESOURCES DEFENSE COUNCIL 111 Sutter Street, 20th Floor San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Plaintiffs [Additional Counsel on Signature Page] UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ARC ECOLOGY, et al., Plaintiffs, and CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, v. UNITED STATES MARITIME ADMINISTRATION, et al., Defendants. Case No. 2:07-cv-2320-GEB-GGH STIPULATION AND ORDER RESOLVING CERTAIN DISCOVERY DISAGREEMENTS Judge: Magistrate Judge Hollows

Stip. & [Prop.] Order Resolving Certain Discovery Disputes, Civ. No. 07-2320-GEB-GGH

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Plaintiffs Arc Ecology, San Francisco Baykeeper, and Natural Resources Defense Council, Inc. (collectively "Environmental Plaintiffs") and defendants United States Maritime Administration ("MARAD"), Sean T. Connaughton, in his official capacity as Maritime Administrator, United States Department of Transportation, and Ray H. LaHood, in his official capacity as Secretary of Transportation (collectively "Defendants"), stipulate to and respectfully propose the following: WHEREAS, Environmental Plaintiffs propounded document requests on March 17, 2008, and on March 4, 2009; and WHEREAS, on March 4, 2009, Environmental Plaintiffs noticed a deposition of defendant MARAD pursuant to Fed. R. Civ. P. 30(b)(6); and WHEREAS, on April 21, 2009, and May 4, 2009, Environmental Plaintiffs filed a Notice of Motion and Motion to Compel Discovery Responses concerning the above-referenced document requests and deposition notice; and WHEREAS, the deposition of MARAD pursuant to Fed. R. Civ. P. 30(b)(6) commenced with the deposition of MARAD, through two of its designated witnesses, Carolyn Junemann and Eugene Magee, on May 21, 2009 and May 22, 2009, respectively; and WHEREAS, Defendants produced more than 20,000 pages of documents to Environmental Plaintiffs in the two weeks before MARAD's deposition commenced, and have produced several thousand pages of documents since the deposition of designated witnesses Dr. Junemann and Mr. Magee; and WHEREAS, as a result of testimony during the deposition of Mr. Magee, certain disagreements arose among the parties concerning Defendants' invocations of privilege, including privileges associated with testimony concerning advice of counsel; and WHEREAS, the parties to this discovery dispute have had a disagreement whether Defendants have waived attorney-client privilege; and

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WHEREAS, the parties to this discovery dispute have disagreements concerning the adequacy of Defendants' assertions of privilege with respect to a number of documents that Defendants have withheld or redacted in responding to Environmental Plaintiffs' document requests; and WHEREAS, the parties to the discovery dispute have met and conferred and resolved certain of their disagreements concerning discovery; and WHEREAS, on June 4, 2009, Defendants withdrew their assertions of privilege as to a number of documents and, on June 10, 2009, produced those documents to Environmental Plaintiffs; WHEREAS, the parties have agreed to memorialize certain of their agreements in a Stipulation and Order; and WHEREAS, as part of the parties' agreement, the parties are filing a separate stipulation and proposed order to extend the last date for Environmental Plaintiffs to conduct discovery of Defendants; THEREFORE, Environmental Plaintiffs and Defendants hereby stipulate as follows: 1. Defendants will not introduce in evidence any documents for which

Defendants have asserted a claim of privilege. In the case of redacted documents, Defendants may introduce those portions of the documents that are not redacted, to the extent those portions are otherwise admissible. To the extent otherwise admissible, Defendant may introduce into evidence any documents or redacted portions of documents for which Defendants have, as of June 19, 2009, withdrawn prior assertions of privilege. Defendants will not elicit testimony of any defense witness regarding a privileged matter on which that witness was instructed by Defendants' counsel at deposition not to respond and as to which the assertion of privilege was not withdrawn during the course of the deposition of that witness. Defendants will not attempt to use other witnesses to elicit testimony regarding these privileged matters with respect to which testimony or evidence could not be

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introduced under this paragraph. Notwithstanding any other provision of this paragraph, Defendants will not introduce any evidence regarding advice of counsel, including any testimony or other evidence that Defendants received or relied upon advice of counsel, unless Environmental Plaintiffs first elicit testimony or introduce evidence as to whether Defendants received or relied upon advice of counsel. For purposes of the preceding sentence, and notwithstanding Fed. R. Civ. P. 32(a)(6), Environmental Plaintiffs' introduction of portions of a deposition transcript that does not refer to advice of counsel, or Environmental Plaintiffs' introduction of a portion of a deposition transcript, solely for purposes of impeachment, during which a witness testified concerning advice of counsel, shall not authorize Defendants to introduce evidence concerning advice of counsel. Examination conducted by Environmental Plaintiffs that does not directly inquire into or refer to advice of counsel will not be deemed to have elicited evidence as to whether Defendants received or relied upon advice of counsel. 2. Environmental Plaintiffs will not present evidence or argument that

MARAD has waived any attorney-client privilege associated with the document bearing BATES MARAD014966-14985 or any document or redaction portion of a document evidencing the subject matter of the document bearing BATES MARAD014966-14985. The preceding sentence shall not apply if Defendants introduce any evidence concerning advice of counsel. 3. Environmental Plaintiffs may recall Dr. Junemann and Mr. Magee to

testify as MARAD's designated Fed. R. Civ. P. 30(b)(6) witnesses after Environmental Plaintiffs have completed review of MARAD's recently produced documents. 4. By June 12, 2009, Defendants will produce to Environmental Plaintiffs

the documents for which Defendants, on June 4, 2009, withdrew their claim of privilege.

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5.

The parties have resolved the disputes that have presently been

identified relating to the discovery hearing calendared for June 25, 2009. Environmental Plaintiffs' motion to compel is hereby taken off calendar. Respectfully submitted, For Environmental Plaintiffs: July 22, 2009 By: /s/ Michael E. Wall

MICHAEL E. WALL (Cal. Bar No. 170238) NATURAL RESOURCES DEFENSE COUNCIL 111 Sutter Street, 20th Floor San Francisco, California 94104 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] THOMAS CMAR (admitted pro hac vice) NATURAL RESOURCES DEFENSE COUNCIL 2 North Riverside Plaza, Suite 2250 Chicago, IL 60606-9997 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] SARAH LIPTON-LUBET (admitted pro hac vice) NATURAL RESOURCES DEFENSE COUNCIL 1200 New York Ave., NW, Suite 400 Washington, DC 20005 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] SCOTT ALLEN (Cal. Bar No. 178925) LARIVIERE, GRUBMAN & PAYNE 19 Upper Ragsdale Drive, Suite 200 Monterey, CA 93940 Tel.: [phone]; Fax: [phone] Email: [e-mail] DAVID A. NICHOLAS (admitted pro hac vice) 20 Whitney Road Newton, MA 02460 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] Attorneys for plaintiffs Arc Ecology, San Francisco Baykeeper, and Natural Resources Defense Council, Inc.

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For Defendants: JOHN C. CRUDEN Acting Assistant Attorney General Environment & Natural Resources Division July 22, 2009 7/2/2009) By: /s/ Michelle R. Lambert (as authorized

LESLIE M. HILL MICHELLE R. LAMBERT Trial Attorneys United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington, DC 20026-3986 Telephone: [phone] Facsimile: [phone]

ORDER The foregoing stipulation by the parties is hereby approved and entered as an ORDER of the Court. Nothing in this Stipulation and Order relieves the parties of completing discovery by the presently scheduled cutoff date--August 31, 2009. It is so ORDERED.

Date: July 22, 2009

/s/ Gregory G. Hollows _____________________________________ HONORABLE GREOGRY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

Arc.stip2

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