Georgia-Pacific LLC v. OfficeMax Incorporated et al

Filing 79

STIPULATED ORDER REGARDING THE INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION. Signed by Judge Richard Seeborg on 1/14/13. (cl, COURT STAFF) (Filed on 1/14/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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GEORGIA-PACIFIC LLC,
Plaintiff,
v.
OFFICEMAX INCORPORATED and
BOISE CASCADE, L.L.C.,
Defendants.
_________________________________
AND RELATED COUNTERCLAIMS
OFFICEMAX INCORPORATED and
BOISE CASCADE, L.L.C.,

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Third Party Plaintiffs,
v.
LOUISIANA-PACIFIC
CORPORATION, THE CITY OF FORT
BRAGG, and DOES 1-10 inclusive,

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[PROPOSED] STIPULATED ORDER
REGARDING THE INADVERTENT
DISCLOSURE OF PRIVILEGED
INFORMATION
Judge: Hon. Richard Seeborg
Complaint Filed:
Amd. Complaint Filed:
3P Complaint Filed:
1st Amd. 3P Cplt. Filed:

May 31, 2012
June 4, 2012
Aug. 30, 2012
Oct. 31, 2012

Third-Party Defendants.
_________________________________

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CASE NO.: 12-02797 RS

AND RELATED COUNTERCLAIMS

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[PROPOSED] STIPULATED ORDER REGARDING
THE INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
CASE NO. 12-02797 RS

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The Parties by and through their respective counsel, have jointly stipulated to

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the terms of Stipulated Order Governing the Inadvertent Disclosure of Privileged

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Information, and with the Court being fully advised as to the same, it is hereby

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ORDERED:

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I.

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APPLICABILITY
1.

Pursuant to Federal Rule of Evidence 502(d) this Court can order that the

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attorney-client privilege, work product protection, and/or any other applicable

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privilege or immunity is not waived by the disclosure of a document or other

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information protected by these privileges either in this litigation or in any other federal

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or state proceeding.

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This Order shall be applicable to and govern all testimony in deposition

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transcripts and/or videotapes, documents produced in response to requests for

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production of documents, answers to interrogatories, responses to requests for

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admissions, affidavits, declarations, correspondence and all other information or

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material produced, made available for inspection, or otherwise submitted and

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transmitted by any of the Parties in this litigation pursuant to the Federal Rules of

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Civil Procedure (including disclosures pursuant to FRCP 26) or pursuant to a Public

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Records Act Request to the City of Fort Bragg (“City”), or by informal exchange and

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communication between the Parties (collectively “Information”). The treatment of

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Information disclosed at trial or hearings will be determined at a later date by the

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Court pursuant to applicable federal and state law.

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2.

This Order does not excuse a Party from its obligations to undertake

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reasonable measures to protect against the inadvertent disclosure of privileged

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Information.

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[PROPOSED] STIPULATED ORDER REGARDING THE
INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
CASE NO. 12-02797 RS

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II.

PRODUCTION OF DISCOVERY MATERIALS CONTAINING

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POTENTIALLY PRIVILEGED INFORMATION

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3.

The inadvertent production of any privileged, work product protected or

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otherwise exempted Information (“Protected Information”) shall not be deemed a

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waiver or impairment of any claim of privilege, work product protection or exemption

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including, but not limited to, the attorney-client privilege, the protection afforded to

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work product materials, privileges afforded the City under applicable California code

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sections or case law or the subject matter thereof as to the inadvertently produced

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Protected Information as long as the producing Party adheres to the terms of this

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Order
4.

The producing Party must notify the receiving Party promptly, in writing,

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upon discovery that such Protected Information has been produced. Upon receiving

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written notice from the producing Party that privileged, work product protected, or

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exempted Information has been produced, such Information, and all copies thereof,

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shall be returned to the producing Party within ten (10) business days of receipt of

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such notice and the receiving Party shall not-use such Protected Information for any

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purpose, except as provided in paragraph 5, until further Order of the Court. The

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receiving Party shall also attempt, in good faith, to retrieve and return or destroy all

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copies of the Protected Information in electronic format.

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5.

The receiving Party may contest the privilege, work product, or other

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exemption designation, by the producing Party. The receiving Party contesting the

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designation shall give the producing Party written notice of the reason for said

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disagreement and shall be entitled to retain one copy of the disputed Protected

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Information for use in resolving the dispute. However, as long as the producing Party

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is not in material breach of this agreement, the receiving Party may not challenge the

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designation by arguing that the mere disclosure of the Protected Information itself is a

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waiver of any applicable privilege. In a contest over the proper designation of the

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[PROPOSED] STIPULATED ORDER REGARDING THE
INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
CASE NO. 12-02797 RS

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Information, the receiving Party shall, within fifteen (15) business days from the

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initial notice by the producing Party, seek an Order from the Court compelling the

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production of the Protected Information. If no such Order is sought, upon expiration

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of the fifteen (15) day period, all copies of the disputed Protected Information shall be

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returned to the Producing Party.

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6.

Any analyses, memoranda or notes which were internally generated

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based upon the disputed Protected Information shall immediately be placed in sealed

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envelopes, and shall be destroyed in the event that (a) the receiving Party does not

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contest that the Protected Information is privileged or otherwise protected, or (b) the

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Court rules that the Information is privileged or otherwise protected. Such analyses,

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memoranda or notes may only be removed from the sealed envelopes and used for

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their intended purposes in the event that (a) the producing Party agrees in writing that

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the Information is not privileged or otherwise protected, or (b) the Court rules that the

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Information is not privileged or otherwise protected.

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7.

Nothing in this agreement shall relieve a Party of any obligation that it

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might have regarding the use of knowingly privileged information.

Nor shall a

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receiving Party be subject to any sanction, up to and including recusal, for its review

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of Protected Information that it did not know was subject to a claim of privilege. This

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agreement shall only pertain to Protected Information produced prior to, or concurrent

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with, the date of exchange of expert reports and supporting materials. Any Party who

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thereafter desires to make a claim of privilege under this agreement shall do so within

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thirty (30) days after the exchange of expert reports and supporting materials, unless

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good cause is shown for a later claim. In determining if good cause exists, the Court

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shall consider, among other relevant factors, the prejudice to the receiving party

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caused by the late claim of privilege. If a claim of privilege takes place after the

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exchange of expert reports, and the privilege claim relates to a document that the

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expert relied on, then the expert shall have 30 days after the claim has been resolved

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[PROPOSED] STIPULATED ORDER REGARDING THE
INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
CASE NO. 12-02797 RS

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to produce a revised report. If a revised report is produced the prior report shall be

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treated as work-product pursuant to Federal Rule of Civil Procedure 26 and all copies

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shall be returned to the producing party. Such report may not be used for any purpose,

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including for the purposes of impeachment. Nothing in this agreement is intended to,

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or shall, constitute a waiver or impairment of any claim, or right to raise such claim,

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of privilege, work product protection or exemption including, but not limited to, the

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attorney-client privilege, the protection afforded to work product materials, privileges

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afforded the City under applicable federal and California code sections or case law.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: January 11, 2013

By /s/ Belynda Reck
Belynda Reck
Attorneys for Plaintiff and CounterDefendant
GEORGIA-PACIFIC LLC

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DATED: January 11, 2013

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PILLSBURY WINTHROP SHAW PITTMAN
By /s/ Mark Elliott
Mark Elliott
Attorneys for Defendants and
Counterclaimants
OFFICEMAX INCORPORATED
and BOISE CASCADE, L.L.C.

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HUNTON & WILLIAMS LLP

DATED: January 11, 2013

BASSI EDLIN HUIE & BLUM LLP
By /s/ Noel Edlin
Noel Edlin
Attorneys for Third-Party Defendant,
Counterclaimant and Cross-Claimant
THE CITY OF FORT BRAGG

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[PROPOSED] STIPULATED ORDER REGARDING THE
INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
CASE NO. 12-02797 RS

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DATED: January 11, 2013

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By: /s/ Tara Sky Woodward
Tara Sky Woodward
Attorneys for Third-Party Defendant,
Counterclaimant, and Cross-Claimant
LOUISIANA-PACIFIC CORPORATION

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WOMBLE CARLYLE SANDRIDGE
& RICE, LLP

*Filer attests that concurrence in the filing has been obtained from Mr. Elliott, Mr.
Edlin, and Ms. Woodward.
PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: January __, 2013

_________________________
Honorable Richard G. Seeborg
United States District Court Judge

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[PROPOSED] STIPULATED ORDER REGARDING THE
INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
CASE NO. 12-02797 RS