Nunes v. Twitter, Inc.

Filing 51

Order by Hon. Vince Chhabria granting 50 Stipulation Regarding Inadvertent Production of Privileged or Otherwise Protected Materials.(knm, COURT STAFF) (Filed on 1/30/2015)

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JEFFREY F. KELLER (SBN 148005)
[e-mail]
CAREY G. BEEN (SBN 240996)
[e-mail]
SARAH R. HOLLOWAY (SBN 254134)
[e-mail]
KELLER GROVER, LLP
1965 Market Street
San Francisco, California 94103
Tel: [phone] / Fax: [phone]

DAVID H. KRAMER (SBN 168452)
[e-mail]
JARRED O. TAYLOR III (SBN 291620)
[e-mail]
WILSON SONSINI GOODRICH &
ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Tel: [phone] / Fax: [phone]

DAVID SCHACHMAN (PRO HAC VICE)
[e-mail]
LAW OFFICES OF DAVID
SCHACHMAN, P.C.
55 West Monroe Street, Suite 2970
Chicago, Illinois 60603
Tel: [phone] /Fax: [phone]

TONIA OUELLETTE KLAUSNER
(PRO HAC VICE)
[e-mail]
BRIAN M. WILLEN (PRO HAC VICE)
[e-mail]
WILSON SONSINI GOODRICH &
ROSATI
Professional Corporation
1301 Avenue of the Americas, 40th Floor
New York, NY 10019-6022
Tel: [phone] / Fax: [phone]

JOHN G. JACOBS (PRO HAC VICE)
[e-mail]
BRYAN G. KOLTON (PRO HAC VICE)
[e-mail]
JACOBS KOLTON, CHTD.
55 West Monroe Street, Suite 2970
Chicago, Illinois 60603
Tel: [phone] /Fax: [phone]
Attorneys for Plaintiff
BEVERLY NUNES and the Putative Class

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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BEVERLY NUNES, individually and on behalf
of a class of similarly situated individuals,

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Plaintiff,
v.

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Case No: 3:14-cv-02843-VC
CLASS ACTION

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Attorneys for Defendant
TWITTER, INC.

[PROPOSED]
STIPULATED ORDER REGARDING
INADVERTENT PRODUCTION OF
PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

TWITTER, INC.,

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Defendant.

Judge: Hon. Vince Chhabria

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[PROPOSED]
STIPULATED ORDER

CASE NO. 3:14-cv-02843-VC

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The parties in the above-captioned case have agreed to a single procedure to govern the
inadvertent production of privileged documents in this action.

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NOW, THEREFORE, the undersigned stipulate and agree as follows:

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1.

Non-Waiver of Privileges

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1.1.

This stipulation is entered pursuant to Rule 502(d) of the Federal Rules of

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Evidence and Section 10 of the December 10, 2014 Stipulated Protective Order (Dkt. No. 47), in

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order to allow for expeditious production of documents, and set forth the procedure to be

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followed in the event of inadvertent production of information subject to the attorney-client

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privilege, work-product doctrine, joint-defense or common interest privilege or any other

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privilege or immunity from disclosure (“Privileged Material”).
2.

In accordance with Rule 502(d), other applicable Rules, and the agreement of the

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Parties, any production or disclosure of Privileged Material shall not be deemed to waive—in this

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litigation or in any other federal, stage, administrative, agency or other proceeding of any kind—

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any applicable privilege or immunity (including, without limitation, the attorney-client privilege,

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the work product privilege and the joint defense or common interest privilege) that would

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otherwise attach to the document or information, regardless of the extent (if any) to which the

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party producing the document or information has reviewed the document or information for

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privilege or other protection. In no event shall the inadvertent or erroneous production, disclosure,

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or transmission of Privileged Material form the basis for a claim that the material is not so

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protected.

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3.

Clawback of Inadvertent or Erroneous Disclosure

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3.1

If a Producing Party, or any other party purporting to hold a privilege, has a good

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faith belief that Privileged Material has been inadvertently produced, it shall promptly notify the

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Receiving Party in writing of its claim of privilege or protection, and specifically identify the

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document or other material at issue (“Discovery Material”). The parties shall comply with their

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ethical and legal obligations concerning the actual or apparent inadvertent production of

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Privileged Material, including their obligation to promptly notify the Producing Party of such

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inadvertent production.
[PROPOSED]
STIPULATED ORDER

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CASE NO. 3:14-cv-02843-VC

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3.2

Upon receipt of any notice claiming that Discovery Material is or includes

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Privileged Material, the other party shall, subject to paragraph 3.3.: (i) promptly destroy the

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Privileged Material (or redact the protected portions of the Discovery Material in the event that

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the entire Discovery Material is not claimed or found to be protected from disclosure) and all

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copies thereof; (ii) permanently delete any electronic versions of the Privileged Material from any

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data source, or any database it maintains; (iii) retrieve all paper copies of the Privileged Material

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provided to any third parties, including experts and consultants; (iv) retrieve from third parties all

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electronic copies contained on physical storage media where practicable, or if not, direct that any

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such electronic versions be permanently deleted; (v) destroy the portion of any notes that reveal

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the substance of the Privileged Material; and (vi) make no further use of the Privileged Material.

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In the event that only a portion of the Discovery Material is claimed or found to be protected from

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disclosure, the party claiming protection shall produce a new version of all Discovery Material

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that included the Privileged Material with such information redacted.

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3.3

To the extent the Receiving Party disputes the claim of privilege (the “Disputing

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Party”), the Disputing Party shall notify the Producing Party, or any other party asserting the

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privilege, of its position (the “Dispute Notification”) within five business days of receiving the

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notice of production of Privileged Information. Within five business days of receiving the

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Dispute Notification, the Producing Party, or any other party purporting to hold a privilege, shall

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either withdraw its claim of privilege or confer with the Disputing Party in an effort to resolve

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their disagreement. If the disagreement is not resolved, the Producing Party, or any other party

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asserting a privilege, and the Disputing Party shall file a joint letter with the Court concerning

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this dispute and jointly request that the letter be filed under seal pursuant to Civil Local Rule 79-

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5. While the dispute is pending and until such time as there is a final judicial determination, the

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Receiving Party shall not use or disseminate the challenged Discovery Material for any purpose

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other than such joint letter.

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3.4

In the event that either (a) the Disputing Party declines to provide a Dispute

Notification within five days of receiving a claim of privilege or protection, or (b) the Court

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[PROPOSED]
STIPULATED ORDER

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CASE NO. 3:14-cv-02843-VC

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determines that the Discovery Material is protected from disclosure, then the Receiving Party

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shall follow the destruction procedures described in paragraph 3.2.

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3.5

If, during a deposition, a party claims that a document being used in the

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deposition (e.g., marked as an exhibit, shown to the witness, or made the subject of

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examination) is subject to any privilege, it may at its sole election (a) allow the document to be

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used in the deposition without waiver of its claim of privilege, or (b) consistent with Federal

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Rule of Civil Procedure 30(c)(2), instruct the witness not to answer the questions concerning the

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document pending a prompt resolution of any disagreement concerning the document’s

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privileged or work-product protected status. If the party allows the examination concerning the

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document to proceed on a non-waiver basis, the parties shall sequester all copies of the

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purportedly-Privileged Material. Promptly after the deposition, the parties will commence the

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procedure outlined in the preceding paragraphs to address the claim of privilege or other

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protection. Until the dispute is resolved, all parties shall treat the transcript of such deposition

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as Confidential. If the party instructs the witness not to answer questions concerning the

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document, the parties will then cooperate in promptly submitting the issue of the document’s

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status to the Court.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: January 28, 2015

JACOBS KOLTON, CHTD.

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By: /s/ John G. Jacobs
JOHN G. JACOBS
BRYAN G. KOLTON

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Attorneys For Plaintiff
BEVERLY NUNES
and the Putative Class

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[PROPOSED]
STIPULATED ORDER

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CASE NO. 3:14-cv-02843-VC

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Dated: January 28, 2015

WILSON SONSINI GOODRICH & ROSATI

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By: /s/ David H. Kramer
DAVID H. KRAMER
TONIA OUELLETTE KLAUSNER
BRIAN M. WILLEN
JARRED O. TAYLOR III

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Attorneys For Defendant
TWITTER, INC.

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[PROPOSED]
STIPULATED ORDER

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CASE NO. 3:14-cv-02843-VC

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CERTIFICATION
I, David H. Kramer, am the ECF User whose identification and password are being used

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to file this [PROPOSED] STIPULATED ORDER REGARDING INADVERTENT

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PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL. In

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compliance with Civil Local Rule 5-1(i), I hereby attest that concurrence in the filing of this

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document has been obtained from all of the signatories.

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Dated: January 28, 2015

/s/ David H. Kramer

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[PROPOSED]
STIPULATED ORDER

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CASE NO. 3:14-cv-02843-VC

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Dated: ______________, 2015
January 30

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VINCE CHHABRIA
UNITED STATES DISTRICT JUDGE

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[PROPOSED]
STIPULATED ORDER

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CASE NO. 3:14-cv-02843-VC