United States of America v. Sweeney et al

Filing 18

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 6/21/2017 re: Federal Rule of Evidence 502. (Donati, J)

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1 JEFFREY H. WOOD Acting Assistant Attorney General 2 ROCHELLE L. RUSSELL (CA No. 244992) United States Department of Justice 3 Environmental and Natural Resources Division Environmental Defense Section 4 301 Howard Street, Suite 1050 San Francisco, CA 94105 5 Tel: (415) 744-6566 / Fax: (415) 744-6476 6 PHILLIP A. TALBERT United States Attorney 7 GREGORY T. BRODERICK Assistant United States Attorney 8 501 I Street, Suite 10-100 9 Sacramento, CA 95814 Tel: (916) 554-2780 10 Attorneys for Plaintiff United States of America 11 LAWRENCE S. BAZEL (CA No. 114641) MAX ROLLENS (CA No. 308984) 12 BRISCOE IVESTER & BAZEL LLP 13 155 Sansome Street, Seventh Floor San Francisco, CA 94104 14 Tel: (415) 402-2700 / Fax: (415) 398-5630 15 Attorneys for Defendants John Donnelly Sweeney and Point Buckler Club, LLC 16 17 UNITED STATES DISTRICT COURT 18 EASTERN DISTRICT OF CALIFORNIA 19 20 21 22 23 24 UNITED STATES OF AMERICA, Plaintiff, v. JOHN DONNELLY SWEENEY and POINT BUCKLER CLUB, LLC 2:17-cv-00112-KJM-KJN STIPULATION RE: FEDERAL RULE OF EVIDENCE 502; ORDER Defendants. 25 26 27 28 Stipulation re: FRE 502; Order 2:17-cv-00112-KJM-KJN 1 Pursuant to Federal Rule of Civil Procedure 26(c), Federal Rule of Evidence 502, and the 2 Parties’ Joint Status Report and Discovery Plan, ECF No. 12, and the Court’s direction at the 3 June 8, 2017 status conference, ECF No. 14, the Parties submit the following stipulation and 4 proposed Order regarding inadvertent disclosure of privileged information. 5 A. 6 REQUEST FOR ORDER REGARDING PROTECTION OF PRIVILEGES 1. This stipulation and Order invokes the protections afforded by Rule 502(d) of the 7 Federal Rules of Evidence. Accordingly, the provisions in Rule 502(b) will not apply to the 8 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 review 10 and to disclose potentially voluminous information and documents, including ESI, through the 11 discovery process. Page-by-page preproduction privilege review may impose an undue burden 12 on the Parties’ resources. 13 3. Each Party is entitled to decide the appropriate degree of care to exercise in 14 reviewing materials for privilege, taking into account the volume and sensitivity of the materials, 15 the demands of the litigation, and the resources that the Party can make available. Irrespective of 16 the care that is actually exercised in reviewing materials for privilege, the Court hereby orders 17 pursuant to Rule 502(d) of the Federal Rules of Evidence that disclosure of privileged or 18 protected information or documents in discovery conducted in this litigation will not constitute 19 or be deemed a waiver or forfeiture—in this or any other federal or state proceeding—of any 20 claims of attorney-client privilege or work product protection that the disclosing Party would 21 otherwise be entitled to assert with respect to the information or documents and their subject 22 matter. 23 4. The Court further orders that because expedited or truncated privilege review may 24 be necessary for the just, speedy, and inexpensive resolution of this matter, and because Rule 25 502(d) does not preserve privileges other than the attorney-client privilege and work-product 26 protection, the Parties shall not review each and every page of the materials produced in 27 discovery for all applicable privileges. Accordingly, the disclosure of privileged or protected 28 information or documents in discovery conducted in this litigation will be deemed unintentional, Stipulation re: FRE 502; Order 2:17-cv-00112-KJM-KJN 1 1 inadvertent, and` compelled by order of this Court. Such disclosure will not constitute a waiver 2 of the disclosing Party’s right to claim any privilege or protection that would have applied to the 3 information or documents or their subject matter but for the disclosure, provided only that the 4 Party disclaiming waiver employed procedures reasonably designed to screen out privileged 5 materials. However, the Parties shall not argue, in this forum or any other, that any privileges 6 were waived as a result of disclosures in this litigation irrespective of the procedures used to 7 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 known 17 to the Party to be subject to another Party’s claim of privilege, the Party identifying the potential 18 claim of privilege is under a good-faith obligation to notify the Party holding the potential claim 19 of privilege. Such notification shall not waive the identifying Party’s ability to subsequently 20 challenge any assertion of privilege with respect to the identified document. If the Party holding 21 the potential claim of privilege wishes to assert a claim of privilege, it shall provide notice in 22 accordance with paragraph 5 above within five business days of receiving notice from the 23 identifying Party. 24 7. Upon receiving notice of a claim of privilege on a produced document, the 25 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 2:17-cv-00112-KJM-KJN 2 1 accessible, such as disaster recovery backup media, are adequately sequestered as long as they 2 are 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, such 6 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 served 10 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 refrain 14 from examining or disclosing materials that the attorney knows or reasonably should know to be 15 privileged and to inform the disclosing Party that such materials have been produced. 16 11. The Party wishing to assert a claim of privilege retains the burden, upon challenge 17 pursuant to paragraph 8, of establishing the applicability of the claimed privilege. This Order 18 does not preclude a Party from voluntarily waiving any claims of privilege. The provisions of 19 Rule 502(a) of the Federal Rules of Evidence apply when a Party uses privileged information to 20 support a claim or defense. No assertions of privilege pursuant to this Stipulation may be made 21 more than 14 days after the filing of final witness and exhibit lists (and other filings required in 22 support of the final pretrial conference). 23 12. Unless this Court orders otherwise for good cause shown, each Party shall bear 24 the costs of producing its own documents. 25 B. 26 27 STIPULATION TREATED AS BINDING The Parties agree to treat the foregoing stipulation as controlling pending the Court’s consideration of it. 28 Stipulation re: FRE 502; Order 2:17-cv-00112-KJM-KJN 3 1 2 Respectfully submitted, 3 JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division 4 5 Dated: June 15, 2017 /s/ Rochelle L. Russell ROCHELLE L. RUSSELL, Trial Attorney U.S. Department of Justice Attorneys for Plaintiff Dated: June 15, 2017 /s/ Lawrence S. Bazel LAWRENCE S. BAZEL Attorney for Defendants 6 7 8 9 10 11 12 13 14 ORDER 15 16 In accordance with the foregoing stipulation and good cause appearing, 17 IT IS SO ORDERED. 18 DATED: June 21, 2017. 19 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 Stipulation re: FRE 502; Order 2:17-cv-00112-KJM-KJN 4

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