Facebook, Inc. et al v. OnLineNic Inc et al

Filing 37

ORDER granting 33 STIPULATED FEDERAL RULE OF EVIDENCE 502(D) ORDER AND CLAWBACK AGREEMENT. Signed by Judge Susan van Keulen on 2/18/2020. (svklc2S, COURT STAFF) (Filed on 2/18/2020)

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TUCKER ELLIS LLP
David J. Steele SBN 209797
[e-mail]
Howard A. Kroll SBN 100981
[e-mail]
Steven E. Lauridsen SBN 246364
[e-mail]
515 South Flower Street
Forty-Second Floor
Los Angeles, CA 90071
Telephone:
213.430.3400
Facsimile:
213.430.3409

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TUCKER ELLIS LLP

Chicago ♦ Cleveland ♦ Columbus ♦ Houston ♦ Los Angeles ♦ San Francisco ♦ St. Louis

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Attorneys for Plaintiffs,
FACEBOOK, INC. and INSTAGRAM, LLC
LEXANALYTICA, PC
Perry J. Narancic – SBN 206820
[e-mail]
2225 E. Bayshore Road
Suite 200
Palo Alto, CA 94303
Telephone:
650.655.2800
Attorneys for Defendants,
ONLINENIC, INC. and DOMAIN ID SHIELD
SERVICES CO., LIMITED

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FACEBOOK, INC. and INSTAGRAM, LLC,
Plaintiffs,

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v.

Case No. 5:19-cv-07071-SVK
STIPULATED [PROPOSED]
FEDERAL RULE OF EVIDENCE 502(D)
ORDER AND CLAWBACK AGREEMENT

ONLINENIC INC., DOMAIN ID SHIELD
SERVICE CO., LIMITED, and DOES 1-20,
Hon. Susan van Keulen

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Defendants.
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STIPULATED [PROPOSED] FRE 502(D) ORDER AND CLAWBACK AGREEMENT
Case No. 5:19-cv-07071-SVK

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1.

PURPOSE

otherwise protected documents (as defined by Fed. R. Civ. P. 34(a)(1)) and accompanying metadata

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(“Documents”), shall not result in the waiver of any privilege or other protection (including, without

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limitation, the attorney-client privilege, the work-product doctrine, the joint defense privilege, or any other

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applicable privilege) associated with such Documents as to the receiving party or any third parties. The

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production or disclosure shall not result in any waiver, including subject matter waiver, of any kind, in

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TUCKER ELLIS LLP

Pursuant to Federal Rules of Evidence 502(d), the production or disclosure of any privileged or

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Chicago ♦ Cleveland ♦ Columbus ♦ Houston ♦ Los Angeles ♦ San Francisco ♦ St. Louis

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this or in any other state or federal proceeding regardless of the circumstances of disclosure pursuant to

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Federal Rule of Evidence 502(d). This Paragraph shall be interpreted to provide the maximum protection

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allowed by Federal Rule of Evidence 502(d) with regard to Documents.

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2.

CLAWBACK AGREEMENT

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In the event that a producing party discovers that it produced Documents subject to a legally

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recognized claim of privilege or work-product protection, it shall provide written notice of the claim to

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the receiving party (a “Clawback Notice”), identifying the subject Documents within thirty days of the

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discovery.

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3.

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PROCEDURES FOLLOWING CLAWBACK NOTICE
a)

Within ten business days of receipt of a Clawback Notice (regardless of whether the

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receiving party agrees with the producing party’s claim of privilege) or a receiving party’s own

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determination that information it received is privileged or work-product-protected, the receiving party

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must promptly return and/or destroy the Document(s), all copies thereof, and any notes that reproduce,

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copy, or otherwise disclose the substance of the information for which privilege is claimed, and notify the

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producing party when this is complete.

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b)

If a receiving party challenges a claim that a Document specified in a Clawback Notice is

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privileged or work-product-protected, the receiving party shall notify the producing party of its positions

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within fourteen days of receiving the Clawback Notice asserting the claim. Within fourteen days of the

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producing party’s receiving notification of the dispute, the parties shall meet and confer in an effort to

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resolve their disagreement. If the parties are unable to resolve their disagreement, either party may submit

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the issue to the Court for a determination and may submit the Document(s) at issue for in camera review
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STIPULATED [PROPOSED] FRE 502(D) ORDER AND CLAWBACK AGREEMENT
Case No. 5:19-cv-07071-SVK

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pursuant to Civil Local Rule 79-5. In submitting such a dispute to the Court, the parties must follow the

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procedure outlined in Civil Local Rule 37 and this Court’s Civil and Discovery Referral Matters Standing

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Order. The Document(s) covered by the Clawback Notice shall not be used or disclosed by the receiving

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party during the time in which the parties are meeting and conferring about the privileged nature of the

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Document(s) or during the time in which the privilege dispute is before the Court.

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4.

PROHIBITION ON USE OF PRIVILEGED INFORMATION

TUCKER ELLIS LLP

To the extent any party is aware that it has obtained privileged or work-product-protected

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Chicago ♦ Cleveland ♦ Columbus ♦ Houston ♦ Los Angeles ♦ San Francisco ♦ St. Louis

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information, or has received a Clawback Notice, or it is reasonably apparent that the party has obtained,

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privileged or work-product-protected information through production, disclosure, or communications,

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such information may not be submitted to the Court (except in connection with a challenge of the privilege

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assertion) or presented for admission into evidence or sought in discovery in this proceeding or in any

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other proceeding or action. The party must immediately notify the opposing party of its possession of such

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privileged information and return or destroy such information or Documents. Any Documents at issue in

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a privilege challenge that are filed with the Court must be filed under seal for in camera review pursuant

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to Civil Local Rule 79-5.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: February 13, 2020

Tucker Ellis LLP

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By: /s/David J. Steele
David J. Steele
Howard A. Kroll
Steven E. Lauridsen
Attorneys for Plaintiffs,
FACEBOOK, INC. and INSTAGRAM, LLC

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STIPULATED [PROPOSED] FRE 502(D) ORDER AND CLAWBACK AGREEMENT
Case No. 5:19-cv-07071-SVK

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DATED: February 13, 2020

LexAnalytica, PC

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By: /s/Perry J. Narancic
Perry J. Narancic

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Attorneys for Defendants,
ONLINENIC, INC. and DOMAIN ID
SHIELD SERVICES CO., LIMITED

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TUCKER ELLIS LLP

Chicago ♦ Cleveland ♦ Columbus ♦ Houston ♦ Los Angeles ♦ San Francisco ♦ St. Louis

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ATTESTATION

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Pursuant to Civil Local Rule 5-1(i)(3), the filer of this document attests that all other signatories

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listed and on whose behalf this filing is made concur in the filing of this document and have granted

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permission to use an electronic signature.

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/s/David J. Steele

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: February 18, 2020

_________________________________
Susan van Keulen
United States Magistrate Judge

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STIPULATED [PROPOSED] FRE 502(D) ORDER AND CLAWBACK AGREEMENT
Case No. 5:19-cv-07071-SVK