United States of America v. LaPant et al

Filing 28

STIPULATION AND ORDER regarding Federal Rule of Evidence 502 signed by District Judge Kimberly J. Mueller on 3/23/2017. (Michel, G.)

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1 2 3 4 5 6 7 8 9 10 DOWNEY BRAND LLP ROBERT P. SORAN ASHLEY M. BOULTON 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: (916) 444-1000 / Facsimile: (916) 444-2100 Attorneys for Defendants GOOSE POND AG, INC., and FARMLAND MANAGEMENT SERVICES CANNATA, O’TOOLE, FICKES & ALMAZAN THERESE Y. CANNATA KIMBERLY A. ALMAZAN 100 Pine Street, Suite 350 San Francisco, CA 94111 Telephone: 415.409.8900 / Facsimile: 415.409.8904 Attorneys for Defendants ROGER J. LAPANT, JR. and J&J FARMS 11 12 13 14 15 16 17 18 19 20 21 JEFFREY H. WOOD Acting Assistant Attorney General ANDREW J. DOYLE JOHN THOMAS H. DO United States Department of Justice Environmental and Natural Resources Division P.O. Box 7611 Washington, DC 20044 Telephone: (202) 514-4427 (Doyle), (202) 514-2593 (Do) PHILLIP A. TALBERT United States Attorney GREGORY T. BRODERICK Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2780 Attorneys for the UNITED STATES OF AMERICA 22 UNITED STATES DISTRICT COURT 23 EASTERN DISTRICT OF CALIFORNIA 24 25 26 27 UNITED STATES OF AMERICA, Plaintiff, v. ROGER J. LAPANT, JR., et al., Defendants. Case No. 2:16-cv-01498-KJM-DB STIPULATION REGARDING FEDERAL RULE OF EVIDENCE 502; ORDER 28 Stipulation re: FRE 502; Order Case No. 2:16-cv-01498-KJM-DB 1 Pursuant to Federal Rule of Civil Procedure 26(c), Federal Rule of Evidence 502, the 2 Parties’ Joint Status Report and Discovery Plan (ECF No. 22), and the Court’s direction at the 3 March 2, 2017 status conference (ECF No. 23), the Parties submit the following stipulation and 4 proposed Order regarding inadvertent disclosure of privileged information. 5 6 A. REQUEST FOR ORDER REGARDING PROTECTION OF PRIVILEGES. 1. This stipulation and Order invokes the protections afforded by Rule 7 502(d) of the Federal Rules of Evidence. Accordingly, the provisions in Rule 502(b) will not 8 apply to the disclosure of communications or information in discovery in this matter. 9 2. The various claims and defenses in this action may require each Party to 10 review and to disclose potentially voluminous information and documents, including ESI, 11 through the discovery process. Page-by-page preproduction privilege review may impose an 12 undue burden on the Parties’ resources. 13 3. Each Party is entitled to decide the appropriate degree of care to exercise 14 in reviewing materials for privilege, taking into account the volume and sensitivity of the 15 materials, the demands of the litigation, and the resources that the Party can make available. 16 Irrespective of the care that is actually exercised in reviewing materials for privilege, the Court 17 hereby orders pursuant to Rule 502(d) of the Federal Rules of Evidence that disclosure of 18 privileged or protected information or documents in discovery conducted in this litigation will 19 not constitute or be deemed a waiver or forfeiture—in this or any other federal or state 20 proceeding—of any claims of attorney-client privilege or work product protection that the 21 disclosing Party would otherwise be entitled to assert with respect to the information or 22 documents and their subject matter. 23 4. The Court further orders that because expedited or truncated privilege 24 review may be necessary for the just, speedy, and inexpensive resolution of this matter, and 25 because Rule 502(d) does not preserve privileges other than the attorney-client privilege and 26 work-product protection, the Parties shall not review each and every page of the materials 27 produced in discovery for all applicable privileges. Accordingly, the disclosure of privileged or 28 protected information or documents in discovery conducted in this litigation will be deemed Stipulation re: FRE 502; Order Case No. 2:16-cv-01498-KJM-DB 1 1 unintentional, inadvertent, and compelled by order of this Court. Such disclosure will not 2 constitute a waiver of the disclosing Party’s right to claim any privilege or protection that would 3 have applied to the information or documents or their subject matter but for the disclosure, 4 provided only that the Party disclaiming waiver employed procedures reasonably designed to 5 screen out privileged materials. However, the Parties shall not argue, in this forum or any other, 6 that any privileges were waived as a result of disclosures in this litigation irrespective of the 7 procedures used screen out privileged materials. 8 9 5. If a Party determines that it has produced a document upon which it wishes to make a claim of privilege, the producing Party shall, within 14 days of making such 10 determination, give all counsel of record notice of the claim of privilege. The notice shall 11 identify each such document and the date it was produced. If the producing Party claims that 12 only a portion of a document is privileged, the producing Party shall provide, along with the 13 notice of the claim of privilege, a new copy of the document with the allegedly privileged 14 portions redacted. Any Party that complies with this paragraph will be deemed to have taken 15 reasonable steps to rectify disclosures of privileged or protected information or materials. 16 6. If a Party identifies a document that appears on its face or in light of facts 17 known to the Party to be subject to another Party’s claim of privilege, the Party identifying the 18 potential claim of privilege is under a good-faith obligation to notify the Party holding the 19 potential claim of privilege. Such notification shall not waive the identifying Party’s ability to 20 subsequently challenge any assertion of privilege with respect to the identified document. If the 21 Party holding the potential claim of privilege wishes to assert a claim of privilege, it shall 22 provide notice in accordance with paragraph 5 above within five business days of receiving 23 notice from the identifying Party. 24 7. Upon receiving notice of a claim of privilege on a produced document, 25 the receiving Party must, in accordance with Fed. R. Civ. P. 26(b)(5)(B), promptly sequester the 26 specified information and any copies it has and may not use or disclose the information, except 27 as provided by Fed. R. Civ. P. 26(b)(5)(B), until the claim is resolved. Copies of privileged 28 documents or information that have been stored on electronic media that is not reasonably Stipulation re: FRE 502; Order Case No. 2:16-cv-01498-KJM-DB 2 1 accessible, such disaster recovery backup media, are adequately sequestered as long as they are 2 not restored; if such data is restored, the receiving Party must take steps to re-sequester the 3 restored information. If the receiving Party disclosed the information before being notified, it 4 must take reasonable steps to prevent further use of such information until the claim is resolved. 5 8. If a Party wishes to dispute a claim of privilege asserted under this Order, 6 such Party shall, within 14 days, move the Court for an order compelling disclosure of the 7 information. The Party shall follow the procedures described in Fed. R. Civ. P. 26(b)(5)(B). 8 Pending resolution of the motion, the Parties shall not use the challenged information for any 9 other purpose and shall not disclose it to any person other than those required by law to be 10 served with a copy of the sealed motion. 11 12 9. The Parties may stipulate to extend the time periods specified in paragraphs 5, 6, and 8 above. 13 10. Nothing in this Order overrides any attorney’s ethical responsibilities to 14 refrain from examining or disclosing materials that the attorney knows or reasonably should 15 know to be privileged and to inform the disclosing Party that such materials have been 16 produced. 17 11. The Party wishing to assert a claim of privilege retains the burden, upon 18 challenge pursuant to paragraph 8, of establishing the applicability of the claimed privilege. 19 This Order does not preclude a Party from voluntarily waiving any claims of privilege. The 20 provisions of Rule 502(a) of the Federal Rules of Evidence apply when a Party uses privileged 21 information to support a claim or defense. No assertions of privilege pursuant to this 22 Stipulation may be made more than 14 days after the filing of final witness and exhibit lists (and 23 other filings required in support of the final pretrial conference). 24 25 12. Unless this Court orders otherwise for good cause shown, each Party shall bear the costs of producing its own documents. 26 B. STIPULATION TREATED AS BINDING. The Parties agree to treat the 27 foregoing stipulation as controlling pending the Court’s consideration of it. 28 ///// Stipulation re: FRE 502; Order Case No. 2:16-cv-01498-KJM-DB 3 1 RESPECTFULLY SUBMITTED, 2 DATED: March 9, 2017 DOWNEY BRAND LLP By: /s/ Robert P. Soran (authorized 03/09/17) ROBERT P. SORAN Attorneys for Defendants GOOSE POND AG, INC., and FARMLAND MANAGEMENT SERVICES 3 4 5 6 CANNATA, O’TOOLE, FICKES & ALMAZAN LLP 7 By: /s/ Kimberly A. Almazan (authorized 03/09/17) KIMBERLY A. ALMAZAN Attorneys for Defendants ROGER J. LAPANT, Jr., and J&J FARMS 8 9 PHILLIP A. TALBERT United States Attorney By: /s/ Gregory T. Broderick GREGORY T. BRODERICK Assistant United States Attorney 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulation re: FRE 502; Order Case No. 2:16-cv-01498-KJM-DB 4 1 ORDER 2 In accordance with the foregoing stipulation and good cause appearing, 3 IT IS SO ORDERED. 4 DATED: March 23, 2017 5 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulation re: FRE 502; Order Case No. 2:16-cv-01498-KJM-DB 5

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