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)

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: [phone] / Fax: [phone]
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: [phone]
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: [phone] / Fax: [phone]
15 Attorneys for Defendants John Donnelly Sweeney and
Point Buckler Club, LLC
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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.

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Stipulation re: FRE 502; Order

2:17-cv-00112-KJM-KJN

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Pursuant to Federal Rule of Civil Procedure 26(c), Federal Rule of Evidence 502, and the

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Parties’ Joint Status Report and Discovery Plan, ECF No. 12, and the Court’s direction at the

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June 8, 2017 status conference, ECF No. 14, the Parties submit the following stipulation and

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proposed Order regarding inadvertent disclosure of privileged information.

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A.

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REQUEST FOR ORDER REGARDING PROTECTION OF PRIVILEGES
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This stipulation and Order invokes the protections afforded by Rule 502(d) of the

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Federal Rules of Evidence. Accordingly, the provisions in Rule 502(b) will not apply to the

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disclosure of communications or information in discovery in this matter.

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2.

The various claims and defenses in this action may require each Party to review

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and to disclose potentially voluminous information and documents, including ESI, through the

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discovery process. Page-by-page preproduction privilege review may impose an undue burden

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on the Parties’ resources.

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3.

Each Party is entitled to decide the appropriate degree of care to exercise in

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reviewing materials for privilege, taking into account the volume and sensitivity of the materials,

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the demands of the litigation, and the resources that the Party can make available. Irrespective of

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the care that is actually exercised in reviewing materials for privilege, the Court hereby orders

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pursuant to Rule 502(d) of the Federal Rules of Evidence that disclosure of privileged or

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protected information or documents in discovery conducted in this litigation will not constitute

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or be deemed a waiver or forfeiture—in this or any other federal or state proceeding—of any

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claims of attorney-client privilege or work product protection that the disclosing Party would

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otherwise be entitled to assert with respect to the information or documents and their subject

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matter.

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4.

The Court further orders that because expedited or truncated privilege review may

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be necessary for the just, speedy, and inexpensive resolution of this matter, and because Rule

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502(d) does not preserve privileges other than the attorney-client privilege and work-product

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protection, the Parties shall not review each and every page of the materials produced in

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discovery for all applicable privileges. Accordingly, the disclosure of privileged or protected

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information or documents in discovery conducted in this litigation will be deemed unintentional,

Stipulation re: FRE 502; Order

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inadvertent, and` compelled by order of this Court. Such disclosure will not constitute a waiver

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of the disclosing Party’s right to claim any privilege or protection that would have applied to the

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information or documents or their subject matter but for the disclosure, provided only that the

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Party disclaiming waiver employed procedures reasonably designed to screen out privileged

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materials. However, the Parties shall not argue, in this forum or any other, that any privileges

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were waived as a result of disclosures in this litigation irrespective of the procedures used to

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screen out privileged materials.

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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

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determination, give all counsel of record notice of the claim of privilege. The notice shall

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identify each such document and the date it was produced. If the producing Party claims that

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only a portion of a document is privileged, the producing Party shall provide, along with the

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notice of the claim of privilege, a new copy of the document with the allegedly privileged

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portions redacted. Any Party that complies with this paragraph will be deemed to have taken

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reasonable steps to rectify disclosures of privileged or protected information or materials.

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6.

If a Party identifies a document that appears on its face or in light of facts known

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to the Party to be subject to another Party’s claim of privilege, the Party identifying the potential

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claim of privilege is under a good-faith obligation to notify the Party holding the potential claim

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of privilege. Such notification shall not waive the identifying Party’s ability to subsequently

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challenge any assertion of privilege with respect to the identified document. If the Party holding

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the potential claim of privilege wishes to assert a claim of privilege, it shall provide notice in

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accordance with paragraph 5 above within five business days of receiving notice from the

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identifying Party.

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7.

Upon receiving notice of a claim of privilege on a produced document, the

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receiving Party must, in accordance with Fed. R. Civ. P. 26(b)(5)(B), promptly sequester the

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specified information and any copies it has and may not use or disclose the information, except

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as provided by Fed. R. Civ. P. 26(b)(5)(B), until the claim is resolved. Copies of privileged

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documents or information that have been stored on electronic media that is not reasonably

Stipulation re: FRE 502; Order

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accessible, such as disaster recovery backup media, are adequately sequestered as long as they

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are not restored; if such data is restored, the receiving Party must take steps to re-sequester the

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restored information. If the receiving Party disclosed the information before being notified, it

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must take reasonable steps to prevent further use of such information until the claim is resolved.

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8.

If a Party wishes to dispute a claim of privilege asserted under this Order, such

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Party shall, within 14 days, move the Court for an order compelling disclosure of the

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information. The Party shall follow the procedures described in Fed. R. Civ. P. 26(b)(5)(B).

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Pending resolution of the motion, the Parties shall not use the challenged information for any

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other purpose and shall not disclose it to any person other than those required by law to be served

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with a copy of the sealed motion.

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9.

The Parties may stipulate to extend the time periods specified in paragraphs 5, 6,

and 8 above.

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10.

Nothing in this Order overrides any attorney’s ethical responsibilities to refrain

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from examining or disclosing materials that the attorney knows or reasonably should know to be

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privileged and to inform the disclosing Party that such materials have been produced.

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11.

The Party wishing to assert a claim of privilege retains the burden, upon challenge

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pursuant to paragraph 8, of establishing the applicability of the claimed privilege. This Order

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does not preclude a Party from voluntarily waiving any claims of privilege. The provisions of

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Rule 502(a) of the Federal Rules of Evidence apply when a Party uses privileged information to

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support a claim or defense. No assertions of privilege pursuant to this Stipulation may be made

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more than 14 days after the filing of final witness and exhibit lists (and other filings required in

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support of the final pretrial conference).

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12.

Unless this Court orders otherwise for good cause shown, each Party shall bear

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the costs of producing its own documents.

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B.

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STIPULATION TREATED AS BINDING
The Parties agree to treat the foregoing stipulation as controlling pending the Court’s

consideration of it.

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Stipulation re: FRE 502; Order

2:17-cv-00112-KJM-KJN
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Respectfully submitted,

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JEFFREY H. WOOD
Acting Assistant Attorney General
Environment and Natural Resources Division

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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

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ORDER

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In accordance with the foregoing stipulation and good cause appearing,

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IT IS SO ORDERED.

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DATED: June 21, 2017.

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UNITED STATES DISTRICT JUDGE

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Stipulation re: FRE 502; Order

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