United States of America v. California Department of Transportation

Filing 45

STIPULATED AGREEMENT AND CONFIDENTIALITY ORDER REGARDING SETTLEMENT NEGOTIATIONS AND MEDIATION re 44 Stipulation filed by United States of America. Signed by Judge Phyllis J. Hamilton on 9/21/09. (nah, COURT STAFF) (Filed on 9/21/2009)

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JOHN C. CRUDEN Acting Assistant Attorney General Environment and Natural Resources Division United States Deparment of Justice DAVIS H. FORSYTHE BRADLEY R. O'BRIEN Trial Attorneys Environmental Enforcement Section Environment and Natural Resources Division United States Department of Justice 601 D. Street, N.W. Washington, D.C. 20004
TeL.: [phone] Fax: [phone]

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MA Bar No.: 667115
Email: davis.forsythe(£usdoj .gov

brad.obrien(£usdoj .gov

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Attorney~ for Plaintiff the United States

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
THE UNITED STATES OF AMERICA,
Plaintiff,
v.
) ) Civil Action No. 4-09-CV-00437-PJH

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STIPULATED AGREEMENT AND CONFIDENTIALITY ORDER REGARDING SETTLEMENT NEGOTIATIONS AND MEDIATION

THE CALIFORNIA DEPARTMENT OF TRANSPORTATION,
Defendant.

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WHEREAS, the United States and the California Deparment of Transportation

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(hereinafter "the Paries") have and wil continue to engage in settlement negotiations of the
issues and disputes that gave rise to the claims in this action (hereinafter "Subject Claims"),

STIPULA TED AGREEMENT AND CONFIDENTIALITY ORDE Case No. 4-09-CV-00437-PJ

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including but not limited to mediation of

the Subject Claims pursuant to the ADR Local Rules

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for the Northern District of California.

WHEREAS, the Parties recognize that meaningful settlement negotiations require

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exchanges of information and opinions, offers of settlement or compromise, and other
communications between them.

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WHEREAS, the Parties agree that maintaining the confidentiality of Settlement
Communications (as defined herein) generally facilitates the free exchange of

information and

enhances the likelihood of successful negotiations.
ACCORDINGL Y, the Parties wish to preserve and provide for the

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confidentiality of

Settlement Communications through this Stipulated Agreement and Confidentiality Order
(hereinafter "Stipulated Order").

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NOW THEREFORE, the Paries do hereby stipulate and agree, and the Court, for good
cause app~aring, pursuant to its inherent authority, Fed. R. Civ. P 26(c) and Fed. R. Evid. 502,
does hereby ORDER as follows:
1. For puroses of this Stipulated Order "Settlement Communications" means:

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(a) oral settlement discussions between the Paries concerning the Subject Claims;
(b) materials

in written or electronic form that are: (i) prepared for purposes of

settlement negotiations with respect to the Subject Claims, (ii) exchanged by and between the Parties in settlement negotiations with respect to the Subject Claims,
and (iii) labeled in accordance with Paragraph 2;

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(c) oral communications concerning the Subject Claims between a Party or the Parties and any individual or individuals selected by the Parties or assigned by the
Court to mediate or otherwise facilitate negotiation and settlement of

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the Subject

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Claims; and

(d) materials in written or electronic form that are: (i) prepared for purposes of
settlement negotiations with respect to the Subject Claims, (ii) provided by a Party or the Parties to any individual or individuals selected by the Parties or

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STIPULA TED AGREEMENT AND CONFIDENTIALITY ORDE Case No. 4-09-CV-00437-P

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assigned by the Cour to mediate or otherwise facilitate negotiation and settlement
of

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the Subject Claims, and (iii) labeled in accordance with Paragraph 2.

2. All written or electronic materials that a Party wishes to have treated as Settlement
Communications under this Stipulated Order shall be conspicuously labeled "Settlement
Communication - Subject to Confidentiality Order," or with similar language, at the time of the exchange; provided however, that the other Party may dispute, either at the time of designation or later, that the written or electronic material is a Settlement Communication within the
meaning of

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this Stipulated Order.

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3. Except as otherwise provided in this Stipulated Order, the Party receiving Settlement
Communications under this Stipulated Order shall keep them confidential and not disclose them

to persons or entities not a Party to this Stipulated Order. The Parties shall take all necessary and
appropriate measures to maintain the confidentiality of Settlement Communications and to retain
written or electronic material in a secure manner.
4. A representative of a Pary who obtains Settlement Communications under this
Stipulated Order may share such information with those attorneys or employees of

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the receiving

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Pary who in the opinion of such Party are responsible for these settlement negotiations or for
whom such information relates to their official duties, provided that the Party proposing to share

the information takes adequate steps to ensure that those attorneys or employees of the Party who

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receive the information comply with this Stipulated Order. A representative of a Party who

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obtains Settlement Communications under this Agrečment also may share such information with
those consultants and experts of the Party who are assisting in the negotiations and who, in the
opinion of such Party, require access, provided that any person with whom such information is shared is specifically made aware of, and, prior to receiving the information, agrees in writing to
be bound by, the provisions of this Stipulated Order as if

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he/she were a Pary.

5. Any Settlement Communication subject to this Stipulated Order may be disclosed to
third pary when the provider of the Settlement Communication has given express written
permission prior to such disclosure.

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STIPULA TED AGREEMENT AND CONFIDENTIALITY ORDE Case No. 4-09-CV-00437-P

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6. Information otherwise admissible or discoverable or subject to subpoena in any
proceeding shall not be rendered inadmissible or non-discoverable or not subject to subpoena

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because of its use in settlement negotiations in this case. Further, this Stipulated Order shall not
prohibit the disclosure of oral communications or written or electronic material already lawfully
in the public domain, or developed or existing independent of the Parties' negotiations of

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the

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Subject Claims.
7. In the event a Party receives a subpoena, court order, in the case ofthe United States,
a FOIA request for Settlement Communications, or in the case of

the California Department of

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Transportation, a California Public Records Act request for Settlement Communications, such
Party shall notify the other Party as soon as possible ofthe request and of

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that Party's proposed

response.
8. Pursuant to Fed. R. Evid. 502, the sharing of Settlement Communications by and

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between the Parties shall not result in a waiver of any attorney-client privilege or attorney work product protection applicable to the Settlement Communication prior to its exchange with the

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other Party under this Stipulated Order. Further, any unauthorized disclosure of Settlement
Communications under this Stipulated Order shall not result in a waiver of any attorney-client

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privilege or attorney work product protection applicable to the Settlement Communication prior

to its exchange with the other Pary and unauthorized disclosure.
9. Nothing in this Stipulated Order limits the full application of

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Fed. R. Evid. 408 to

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Settlement Communications.

10. Nothing in this Stipulated Order limits the right of the United States to take any
action to enforce the laws of

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the United States or to protect public health, safety, welfare or the

environment. Further, nothing in this Stipulated Order limits the United States from complying

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with the requirements or established governent policies of public participation regarding
settlement agreements.
11. Nothing in this Stipulated Order limits the right of the State of

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California to take any

action to enforce the laws of the State of California or to protect public health, safety, welfare or
the environment. Further, nothing in this Stipulated Order limits the State of California from
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STIPULATED AGREEMENT AND CONFIDENTIALITY ORDE Case No. 4-09-CV-00437-PJ

complying with the requirements or established governent policies of public participation
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regarding settlement agreements.

12. Either Pary may terminate settlement negotiations at any time, and may apply to this

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Cour to terminate this Order; provided, however, that a Pary shall notify the other Pary in
writing of its intention to make application to the court to terminate this Stipulated Order at least
60 days in advance of making application; and provided .further, that the confidentiality and

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notice obligations imposed under this Stipulated Order shall remain in full force and effect,

without regard to whether this Stipulated Order has been terminated, with respect to all
Settlement Communications made or exchanged prior to the date of termination.
13. This Stipulated Order shall remain in effect upon the conclusion of

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these

proceedings.

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14. The undersigned representative of each Party certifies that he or she is authorized to
enter into this Stipulated Agreement and to execute for and bind the Party whom he or she
represents.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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Date: 9/21/09

UNIT ED

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S DISTRICT TE C TA

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ER

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F D IS T IC T O R

STIPULA TED AGREEMENT AND CONFIDENTIALITY ORDE Case No. 4-09-CV-00437-P

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C

LI

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FO

hylli Judge P

s J. Ham

ilton

R NIA

RDE PHYLLIS J. HAMILTON IS SO O T UNITEID STATES DISTRICT JUDGE
NO

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Respectfully submitted,

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FOR PLAINTIFF THE UNITED STATES OF AMERICA:

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Date: September 15,2009
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Isl Davis H. Forsythe Davis H. Forsythe
Bradley R. O'Brien

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Trial Attorneys Environmental Enforcement Section Environment and Natural Resources Division United States Deparment of Justice 601 D Street, N.W. Washington, D.C. 20004

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OF COUNSEL:
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Robert M. Lewis Senior Trial Attorney

United States Ary
Environmental Law Division Suite 400,901 N. Stuar St. Arlington, V A 22203 Andrea M. Andersen Assistant General Counsel
The Presidio Trust

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34 Graham Street San Francisco, CA 94129

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FOR DEFENDANT THE CALIFORNIA DEP AR TMENT OF TRANSPORTATION:

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Date: September 15,2009

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Isl Janet Wong Janet Wong Deputy Attorney California Department of Transportation 595 Market Street, Suite 1700 San Francisco, CA 94105

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STIPULA TED AGREEMENT AND CONFIDENTIALITY ORDE Case No. 4-09-CV-00437-P