City of Lincoln v. County of Placer

Filing 15

ORDER signed by District Judge Kimberly J. Mueller on 6/5/2018 ORDERING Stipulated protections for privileged material and work product, Federal Rules of Evidence 502(d) APPROVED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CITY OF LINCOLN,

) Case No.: 2:18-CV-00087-KJM-AC
)
Plaintiff
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vs.
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COUNTY OF PLACER; and DOES 1 through )
100, inclusive,
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Defendants.
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)

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STIPULATION AND ORDER
REGARDING FEDERAL RULES OF EVIDENCE 502(d) – PROTECTIONS FOR
PRIVILEGED MATERIAL AND WORK PRODUCT

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Pursuant to the Court’s Minute Order of May 24th, 2018, with respect to protecting

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privileged material and work product, Plaintiff City of Lincoln (“City”) and Defendant County
of Placer (“County”) (hereinafter collectively, the “Parties”) have agreed and hereby stipulate to
the specific terms set forth below, and respectfully request that the Court ratify and enter an
Order as follows:
I.

Material and Work Product

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The Parties shall handle a claim of privilege or protection asserted after production as

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Federal Rules of Evidence 502(d) - Protections for Privileged

follows:
1.

Discovery in this action may require the Parties to review and disclose large quantities of

documents. For purposes of this Order, the term “document” should be read to include all forms
of information, including electronically-stored information. The documents disclosed in this
case could include materials subject to privilege or other legally recognized protection
(materials that are not subject to discovery).
STIPULATION AND ORDER REGARDING FEDERAL RULES OF EVIDENCE 502(d)
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2.

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burden on the Parties’ resources, the Parties wish to invoke the protections afforded by Federal

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Rule of Evidence 502(d).

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3.

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these documents for privilege or protection. This examination shall be performed with due

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regard for the likelihood that the files contain privileged or protected documents. Nonetheless,

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given the large quantities of documents to be screened, the Parties may rely on random sampling

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or searching rather than document-by-document examination. The Parties recognize that, under

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these circumstances, it is highly possible that some privileged or protected materials may be

Because document-by-document pre-production review would likely impose an undue

Each party shall examine their files containing documents to be produced and shall screen

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produced during discovery.

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4.

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protected document, it must take the following steps to invoke the appropriate privilege or

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protection. Within reasonable time of discovering that it has produced what it believes to be a

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privileged or protected document it will notify all counsel of record of the claim of privilege or

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protection. Furthermore, within thirty (30) days after receiving notice that the receiving party

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intends to refer to, quote, cite, rely upon, or otherwise use a document containing privileged or

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protected information, the producing party must give all counsel of record notice of the claim of

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privilege or protection. The notice must identify the document(s) that is (are) privileged or

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protected and the date the document(s) was (were) produced. The notice shall also provide

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information sufficient to meet the requirements of Federal Rule of Civil Procedure 26(b)(5)(A),

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namely: the information subject to the claim, the author, date, and addressees or recipients of the

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document (where applicable), the privilege or protection being asserted, and the basis for the

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claim of privilege or protection. If the producing party claims that only a portion of a document

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is privileged or protected, in addition to the notice, the producing party shall provide a new copy

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of the document with the allegedly privileged or protected portions redacted.

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5.

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the receiving party must promptly return, sequester, or destroy the specified information and any

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copies it has; must not use or disclose the information until the claim is resolved; and must take

If a producing party determines that it has produced what it believes to be a privileged or

Upon receiving notice of a claim of privilege or protection (as set forth in paragraph 4),

STIPULATION AND ORDER REGARDING FEDERAL RULES OF EVIDENCE 502(d)
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reasonable steps to retrieve the information if the retrieving party disclosed it before being

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notified. See Fed. R. Civ. P. 26(b)(5)(B). If the receiving party does not agree with the privilege

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claim, the Parties must promptly meet and confer in an attempt to resolve the claim. If this

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conference does not resolve the claim, the receiving party may present the information to the

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Court by noticed motion, pursuant to the procedures established by Local Rule 251. In doing

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so, the Parties may file the disputed documents under seal, and file redacted briefing. Any party

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in possession of the information in dispute must preserve the information until the claim is

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resolved. Id.

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6.

To the extent that notes or records in any form concerning any privileged or protected

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information exist (other than those pertaining solely to assertion of the privilege), the portions of

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any such notes or records regarding the privileged or protected information shall be permanently

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destroyed, deleted, or redacted if the claim of privilege or protection is upheld.

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7.

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should not have been disclosed because of any privilege or protection will not be deemed to

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constitute a waiver of the privilege or protection for purposes of this proceeding, or any other

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federal or state proceeding. See Fed. R. Evid. 502(d).

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8.

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and the attorney work-product protection, and thus constitutes a controlling order under Federal

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Rule of Evidence 502(d) with respect to waiver. For purposes of this proceeding, this Order

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also applies to any other privilege or protection under federal or state law that the Parties may

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properly assert to prevent disclosure of information.

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9.

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they identify a document which appears on its face, or in light of facts known to the receiving

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party, to be potentially privileged or protected. Such notification shall not waive the receiving

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party’s ability to subsequently challenge any claim of privilege with respect to the identified

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document. If a receiving party provides such notice, the producing party must follow the steps

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set forth above in paragraph 4 to claim privilege or protection.

Disclosure of any documents or other information that the producing party later claims

This Order applies to documents and information covered by the attorney-client privilege

All receiving Parties remain under a good faith obligation to notify any producing party if

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STIPULATION AND ORDER REGARDING FEDERAL RULES OF EVIDENCE 502(d)
2:18-CV-00087-KJM-AC
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Dated: May 31, 2018

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BROWN & WINTERS

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/s/ Jeffrey T. Orrell
WILLIAM D. BROWN (SBN 125468)
JEFFREY T. ORRELL (SBN 237581)
Brown & Winters
120 Birmingham Drive
Cardiff-by-the-Sea, CA 92007-1737
Tel.: [phone]/Fax: [phone]
Attorneys for Plaintiff
CITY OF LINCOLN

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Dated: May 31, 2018

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/s/ Gregory Warner
GREGORY WARNER (SBN 282490)
Office of County Counsel, Placer County
175 Fulweiler Avenue
Auburn, CA 95603
Telephone No.: [phone]
Facsimile No.: [phone]
COUNTY OF PLACER

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STIPULATION AND ORDER REGARDING FEDERAL RULES OF EVIDENCE 502(d)
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Pursuant to the Stipulation, IT IS SO ORDERED this 5th day of June, 2018.

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UNITED STATES DISTRICT JUDGE

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STIPULATION AND ORDER REGARDING FEDERAL RULES OF EVIDENCE 502(d)
2:18-CV-00087-KJM-AC
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