United States of America Ex Rel. et al v. Maxxam, Inc. et al

Filing 167

ORDER re 166 granting STIPULATION Regarding Non-Waiver of Privilege in Connection with Production of Documents. Signed by Judge Claudia Wilken on 1/7/09. (scc, COURT STAFF) (Filed on 1/7/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

JAMES P. BENNETT (CA SBN 65179) [e-mail] EDGAR B. WASHBURN (CA SBN 34038) [e-mail] ANDREW D. MUHLBACH (CA SBN 175694) [e-mail] CHRISTOPHER J. CARR (CA SBN 184076) [e-mail] BRIAN J. MARTINEZ (CA SBN 224587) [e-mail] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: 415.268.7522 Attorneys for Defendants MAXXAM INC. and CHARLES E. HURWITZ and third-party HUMBOLDT REDWOOD CO. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA ex rel. RICHARD WILSON and CHRIS MARANTO, Plaintiff, v. MAXXAM INC., a Delaware corporation; THE PACIFIC LUMBER COMPANY, a Delaware corporation; SCOTIA PACIFIC COMPANY LLC, a Delaware limited liability company; SALMON CREEK LLC, a Delaware limited liability company; CHARLES E. HURWITZ, an individual, Defendants.

Case No.

C-06-7497 CW (JCS)

STIPULATION AND ORDER REGARDING NON-WAIVER OF PRIVILEGE IN CONNECTION WITH PRODUCTION OF DOCUMENTS Judge: Honorable Claudia Wilken Place: Courtroom 2, 4th Floor Complaint Filed: December 7, 2006 Trial Date: April 20, 2009

STIPULATION AND [PROPOSED] ORDER REGARDING NON-WAIVER OF PRIVILEGE Case No. C-06-7497 CW (JCS) sf-2626257

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TO THE COURT AND ALL PARTIES AND THEIR COUNSEL OF RECORD: IT IS HEREBY STIPULATED by and between the parties to this litigation, the Humboldt Redwood Company, and their respective counsel, Sean E. Ponist, attorney for the United States ex rel. Relators Richard Wilson and Chris Maranto ("Plaintiff"), and Andrew D. Muhlbach, attorney for MAXXAM Inc., Charles E. Hurwitz, and the Humboldt Redwood Company, that: WHEREAS, Morrison & Foerster will be producing electronic documents in response to the requests for production of documents propounded on The Pacific Lumber Company, Scotia Pacific Company LLC, and Salmon Creek LLC (collectively, the "Debtor Defendants"), and the subpoenas for the production of documents served on the Humboldt Redwood Company; WHEREAS, pursuant to the Court's November 14, 2008 Order, Defendants are allowed a "reasonable" amount of time to review for privilege the documents that are subject to Plaintiff's discovery requests; WHEREAS, given the volume of electronically stored data ("ESI") to be reviewed, the facts of this case, the stage of the litigation, and the need for rapid production of documents, Defendants have proposed to forego the individual review of all documents and instead use electronic searches to locate potentially responsive and potentially privileged or work-product protected documents; THEREFORE, pursuant to Federal Rule of Evidence 502(d), the parties to this litigation and the Humboldt Redwood Company (hereinafter the "Stipulating Parties") hereby stipulate and agree by and through counsel to the entry of an order as follows: 1. The Stipulating Parties agree that the inadvertent disclosure or production of

purportedly privileged or work-product protected documents to Plaintiff or its counsel through Morrison & Foerster's production of electronic documents, commencing on or after January 7, 2009, shall not be deemed to waive the attorney-client privilege, the work product protection, or any other applicable privileges. All applicable privileges are specifically reserved. 2. Morrison & Foerster may make a written demand for the return of any material

asserted to be privileged or protected by the work-product doctrine at any time by listing said material on its privilege log.
STIPULATION AND [PROPOSED] ORDER REGARDING NON-WAIVER OF PRIVILEGE Case No. C-06-7497 CW (JCS) sf-2626257

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3.

In addition to the foregoing, upon Plaintiff's discovery of the disclosure of

purportedly inadvertently produced privileged or work-product protected materials, Plaintiff shall immediately segregate such materials and inform Morrison & Foerster of the inadvertent disclosure. 4. Immediately upon the written assertion of privilege by Morrison & Foerster

pursuant to paragraph 2, above, all such privileged or work-product protected materials, together with any copies or notes thereof, including any electronically reproducible copies, will be returned to Morrison & Foerster or destroyed. Plaintiff shall document its compliance with this return or destruction requirement in a writing sent to Morrison & Foerster. 5. In the event of a dispute over the assertion of privilege or work-product protection

in material whose return was demanded by Morrison & Foerster pursuant to paragraph 2, above, the Stipulating Party opposing the assertion of privilege or work-product protection shall have the burden of moving to compel the production of the disputed materials. On such a motion, the proponent of the privilege shall bear the burden of proving the existence or applicability of the asserted privilege. 6. This stipulation does not constitute an admission or agreement that any particular

privilege does actually apply to the information and documents produced by Morrison & Foerster. By executing this stipulation, Plaintiff and its counsel do not waive any argument that any asserted privilege does not apply to the produced documents. Further, by executing this stipulation, Plaintiff and its counsel do not waive any right to seek redress from the Court regarding the delay in the production of documents.

STIPULATION AND [PROPOSED] ORDER REGARDING NON-WAIVER OF PRIVILEGE Case No. C-06-7497 CW (JCS) sf-2626257

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated: January 6, 2009

COTCHETT, PITRE & McCARTHY

By:

/s/ Sean E. Ponist Sean E. Ponist Attorneys for Plaintiffs THE UNITED STATES OF AMERICA ex rel. RICHARD WILSON and CHRIS MARANTO

Dated: January 6, 2009

MORRISON & FOERSTER LLP

By:

/s/ Andrew D. Muhlbach Andrew D. Muhlbach Attorneys for Defendants MAXXAM INC. and CHARLES E. HURWITZ

I, Brian J. Martinez, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order. Pursuant to General Order 45, I hereby attest that Sean E. Ponist and Andrew D. Muhlbach have concurred in this filing.

STIPULATION AND [PROPOSED] ORDER REGARDING NON-WAIVER OF PRIVILEGE Case No. C-06-7497 CW (JCS) sf-2626257

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER Pursuant to the stipulation of the parties, IT IS SO ORDERED. 1/7/09 Dated: ____________________ HONORABLE CLAUDIA WILKEN United States District Judge Northern District of California

STIPULATION AND [PROPOSED] ORDER REGARDING NON-WAIVER OF PRIVILEGE Case No. C-06-7497 CW (JCS) sf-2626257

4