Maiteki v. Marten Transportation Ltd

Filing 168

AMENDED FRE 502(D) AND (E) CLAWBACK STIPULATION AND ORDER granting 164 Motion to Amend, by Magistrate Judge Craig B. Shaffer on 10/6/14.(cbssec)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 1:12-cv-02021-WJM-CBS
RONALD MUKASA MAITEKI,
Plaintiff,
v.
MARTEN TRANSPORT, LTD., et al.,
Defendants
Consolidated With
Case No. 1:14-cv-01939-WJM-CBS
RONALD MUKASA MAITEKI,
Plaintiff,
v.
VOYAGER EXPRESS, INC.,
Defendant
AMENDED FRE 502(D) AND (E) CLAWBACK STIPULATION AND ORDER
WHEREAS, the Parties have agreed to stipulate to protect certain privileged and
otherwise protected documents, data (including electronically stored information) and
other information, including without limitation, metadata (collectively “Documents”),
against claims of waiver and inadvertent production in the event they are produced

EXHIBIT A

during the course of this litigation whether pursuant to a Court Order, the Parties’
discovery requests or informal productions.
WHEREAS, the Parties may be required to produce large volumes of
Documents. The Parties wish to comply with discovery deadlines and complete
discovery as expeditiously as possible, while preserving and without waiving any
evidentiary protections or privileges applicable to the information contained in the
Documents produced, including as against third parties and other Federal and State
proceedings, and in addition to their agreement, need the additional protections of
a Court Order under FRE 502(d) and (e) to do so.
WHEREAS, in order to comply with applicable discovery deadlines, a Party may
be required to produce certain categories of Documents that have been subject to
minimal or no attorney review (the “Disclosures”). This Stipulation and Order is
designed to foreclose any arguments that by making such Disclosures, the disclosure or
production of Documents subject to a legally recognized claim of privilege, including
without limitation the attorney-client privilege, work-product doctrine, or other applicable
privilege:
a.

Was not inadvertent by the Producing Party;

b.

That the Producing Party did not take reasonable steps to prevent
the disclosure of privileged Documents;

c.

That the Producing Party did not take reasonable or timely steps to
rectify such Disclosure; and/or,

2

EXHIBIT A

d.

That such Disclosure acts as a waiver of applicable privileges or
protections associated with such Documents.

WHEREAS, because the purpose of this Stipulation is to protect and preserve
privileged Documents, the Parties agree they are bound as follows from and after the
date their counsel have signed it, even if such execution occurs prior to Court approval.
Accordingly, the Parties hereby STIPULATE, and the Court hereby ORDERS
pursuant to Federal Rules of Evidence 502(d) and (e), as follows:
The disclosure or production of Documents by a Producing Party subject to a
legally recognized claim of privilege, including without limitation the attorney-client
privilege, joint defense privilege and the work-product doctrine, to a Receiving Party,
shall in no way constitute the voluntary disclosure of such Document.
The inadvertent disclosure or production of any Document in this action shall not
result in the waiver of any privilege, evidentiary protection or other protection associated
with such Document as to the Receiving Party or any third parties, and shall not result in
any waiver, including subject matter waiver, of any kind.
If, during the course of this litigation, a Party determines that any Document
produced by another Party is or may reasonably be subject to a legally recognizable
privilege or evidentiary protection (“Protected Document”):
a.

The Receiving Party shall:
i.

refrain from reading the Protected Document any more
closely than is necessary to ascertain that it is privileged or
otherwise protected from disclosure;
3

EXHIBIT A

ii.

immediately notify the Producing Party in writing that it has
discovered Documents believed to be privileged or
protected;

iii.

specifically identify the Protected Documents by Bates
number range or hash value; and,

iv.

within ten (10) days of discovery by the Receiving Party,
return, sequester, or destroy all copies of such Protected
Documents, along with any notes, abstracts or compilations
of the content thereof.

To the extent that a Protected Document has been loaded into
a litigation review database under the control of the Receiving
Party, the Receiving Party shall have all electronic copies of the
Protected Document extracted from the database. Where such
Protected Documents cannot be destroyed or separated, they shall
not be reviewed, disclosed, or otherwise used by the Receiving
Party. Notwithstanding, the Receiving Party is under no obligation
to search or review the Producing Party’s Documents to identify
potentially privileged or work product Protected Documents.
b.

If the Producing Party intends to assert a claim of privilege or other
protection over Documents identified by the Receiving Party as
Protected Documents, the Producing Party will, within ten (10) days
of receiving the Receiving Party’s written notification described
4

EXHIBIT A

above, inform the Receiving Party of such intention in writing and
shall provide the Receiving Party with a log for such Protected
Documents that is consistent with the requirements of the Federal
Rules of Civil Procedure, setting forth the basis for the claim of
privilege or other protection. In the event that any portion of
a Protected Document does not contain privileged or protected
information, the Producing Party shall also provide to the Receiving
Party a redacted copy of the document that omits the information
that the Producing Party believes is subject to a claim of privilege or
other protection.
If, during the course of this litigation, a Party determines it has produced
a Protected Document:
a.

The Producing Party may notify the Receiving Party of such
inadvertent production in writing, and demand the return of such
documents. Such notice shall be in writing, however, it may be
delivered orally on the record at a deposition, promptly followed up
in writing. The Producing Party’s written notice will identify the
Protected Document inadvertently produced by bates number
range or hash value, the privilege or protection claimed, and the
basis for the assertion of the privilege and shall provide the
Receiving Party with a log for such Protected Documents that is
consistent with the requirements of the Federal Rules of Civil
5

EXHIBIT A

Procedure, setting forth the basis for the claim of privilege or other
protection. In the event that any portion of the Protected Document
does not contain privileged or protected information, the Producing
Party shall also provide to the Receiving Party a redacted copy of
the Document that omits the information that the Producing Party
believes is subject to a claim of privilege or other protection.
b.

The Receiving Party must, within ten (10) days of receiving the
Producing Party’s written notification described above, return,
sequester, or destroy the Protected Document and any copies,
along with any notes, abstracts or compilations of the content
thereof. To the extent that a Protected Document has been loaded
into a litigation review database under the control of the Receiving
Party, the Receiving Party shall have all electronic copies of the
Protected Document extracted from the database.

To the extent that the information contained in a Protected Document has
already been used in or described in other documents generated or maintained by the
Receiving Party prior to the date of receipt of written notice by the Producing Party as
set forth in paragraphs 3(b) and 4(a), then the Receiving Party shall sequester such
documents until the claim has been resolved. If the Receiving Party disclosed the
Protected Document before being notified of its inadvertent production, it must take
reasonable steps to retrieve it.

6

EXHIBIT A

The Receiving Party’s return, sequestering or destruction of Protected
Documents as provided herein will not act as a waiver of the Requesting Party’s right to
move for the production of the returned, sequestered or destroyed documents on the
grounds that the documents are not, in fact, subject to a viable claim of privilege or
protection. However, the Receiving Party is prohibited and estopped from arguing that:
a.

The disclosure or production of the Protected Documents acts as
a waiver of an applicable privilege or evidentiary protection;

b.

The disclosure of the Protected Documents was not inadvertent;

c.

The Producing Party did not take reasonable steps to prevent the
disclosure of the Protected Documents; or

d.

The Producing Party failed to take reasonable or timely steps to
rectify the error pursuant to Federal Rule of Civil Procedure
26(b)(5)(B), or otherwise.

Any Party may submit Protected Documents to the Court under seal for
a determination of the claim of privilege or other protection. The Producing Party shall
preserve the Protected Documents until such claim is resolved. The Receiving Party
may not use the Protected Documents for any purpose absent this Court’s Order.
Upon a determination by the Court that the Protected Documents are protected
by the applicable privilege or evidentiary protection, and if the Protected Documents
have been sequestered rather than returned or destroyed by the Receiving Party, the
Protected Documents shall be returned or destroyed within 10 (ten) days of the Court’s

7

EXHIBIT A

order. The Court may also order the identification by the Receiving Party of Protected
Documents by search terms or other means.
Nothing contained herein is intended to, or shall serve to limit a Party’s right to
conduct a review of documents, data (including electronically stored information) and
other information, including without limitation, metadata, for relevance, responsiveness
and/or the segregation of privileged and/or protected information before such
information is produced to another Party.
This Clawback Stipulation and Order shall not result in extension of any
scheduling deadlines or require any party to purge previously submitted documents and
request substitute production of documents already produced as of the date of this
Order, so long as any privileges were duly waived by the Producing Party as to the
same.
Once executed by all Parties, the Stipulation shall be by treated by the Parties as
an Order of Court until it is formally approved by the Court.
By operation of the Parties’ agreement and Court Order, the Parties are
specifically afforded the protections of FRE 502 (d) and (e).
October 6
DATED at Denver, Colorado, on ____________________, 2014.

BY THE COURT:

s/
Craig B. Shaffer
United States Magistrate Judge

8

EXHIBIT A

STIPULATED AND AGREED TO:
EMEJURU & NYOMBI, L.L.C.
s/Andrew Nyombi
Andrew Nyombi
Ikechukwu K. Emejuru
8403 Colesville Road, Suite 1100
Silver Spring, MD 20910
Telephone: [phone]
Facsimile: 800.250.7923
E-mail:
[e-mail]
[e-mail]
Attorneys for Plaintiff Ronald Mukasa
Maiteki

DEWITT ROSS & STEVENS, P.C.
s/John C. Gardner
Stephen A. DiTullio
John C. Gardner
2 East Mifflin Street, Suite 600
Madison, WI 53703-2865
Telephone: [phone]
Facsimile: 608.252.9243
E-mail:
[e-mail]
[e-mail]
Attorneys for Defendant Marten Transport,
Ltd.

TREECE ALFREY MUSAT, P.C.
s/Carol Lynn Thomson
Carol Lynn Thomson
Paul E. Collins
999 18th Street; 1600 South Tower
Denver, CO 80202
Telephone: [phone]
Facsimile: 303.295.0414
E-mail:
[e-mail]
[e-mail]
Attorneys
for
Defendant
Knight
Transportation, Inc.

KISSINGER & FELLMAN, P.C.
By: /s/ Bobby G. Riley
Bobby G. Riley
Richard P. Kissinger
3773 Cherry Creek N. Dr., #900
Denver, Colorado 80209
Telephone: [phone]
Facsimile: 303-327-8601
Email: [e-mail]
[e-mail]
Attorneys for Defendant Voyager Express,
Inc.

LITTLER MENDELSON, P.C.
s/ Chad J. Kaldor
Chad J. Kaldor
21 East State Street, 16th Floor
Columbus, OH 43215
Telephone: [phone]
Facsimile: 614.573.7972
E-mail:
[e-mail]

Rod M. Fliegel
650 California Street, 20th Floor
San Francisco, CA 94108
Telephone: [phone]
Facsimile: 415.743.6557
E-mail:
[e-mail]

Daniel M. Combs
1900 16th Street, Suite 800
Denver, CO 80202
Telephone: [phone]
Facsimile: 303.299.0200
E-mail:
[e-mail]

Attorneys for Defendant HireRight, Inc.

9