Bolerjack v. Pepperidge Farm, Inc.

Filing 101

ORDER UNDER FED. R. EVID. 502(D). By Magistrate Judge Boyd N. Boland on 12/6/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02918-PAB-BNB
(Consolidated with Civil Action Nos. 13-cv-02607-PAB and 13-cv-02866-PAB)
________________________________________________________________________
Civil Action No. 12-cv-02918-PAB-BNB
SONYA BOLERJACK,
Plaintiff,
v.
PEPPERIDGE FARM, INC.,
Defendant.
________________________________________________________________________
Civil Action No. 13-cv-02607-PAB-BNB
GARETT KOEHLER,
Plaintiff,
v.
PEPPERIDGE FARM, INC.
Defendant.
________________________________________________________________________
Civil Action No. 13-cv-02866-PAB-BNB
LISA LEO,
Plaintiff,
v.
PEPPERDIGE FARM, INC.
Defendant.

STIPULATED AGREEMENT AND ORDER UNDER FED. R. EVID. 502(D)
_________________________________________________________________________

WHEREAS, Plaintiffs and Defendant (together, “the Parties”) jointly request that this
Court issue an Order pursuant to Federal Rule of Evidence 502(d) to facilitate production and
use of documents in this proceeding and to protect the Parties against waiver of any privileges
attaching to those documents;
WHEREAS, the Parties may be required to produce documents, answer interrogatories
and provide testimony and other information that may contain information covered by the
attorney-client privilege or work product protection;
WHEREAS, absent an order from the Court, under certain circumstances, the production
of privileged or protected documents can operate as a waiver of any applicable privilege,
protection and/or immunity with respect to disclosure in this case and other Federal or State
proceedings;
WHEREAS, the Parties wish to expedite and facilitate the production of a large volume
of electronic and hard copy data, information and documents, and to protect against inadvertent
disclosure of attorney-client privileged communications or work product materials;
WHEREAS, Fed. R. Evid. 502(d) states that “[a] federal court may order that the
privilege or protection is not waived by disclosure in connection with the litigation pending
before the court, in which event the disclosure is also not a waver in any other Federal or State
proceeding;”
WHEREAS, this Court finds good cause to issue an order pursuant to Fed. R. Evid.
502(d); and
WHEREAS, the Court shall retain jurisdiction over any matter or dispute arising from or
relating to the implementation of this order.

2

IT IS HEREBY STIPULATED, AGREED AND ORDERED that, pursuant to Fed. R.
Evid. 502(d), a Party’s inadvertent disclosure or production of any documents or information in
this proceeding shall not, for the purpose of this proceeding or any other proceeding in any other
court, constitute a waiver by that Party of any privilege or protection available to those
documents, including the attorney-client privilege, work product protection and any other
privilege or protection recognized by law. The provisions of Fed. R. Evid. 502(d) are
inapplicable to the production of documents or information under this Order. Specifically, there
has been no waiver if a party discloses privileged or protected information inadvertently or
otherwise, regardless of whether the party took reasonable steps to prevent the disclosure or to
rectify the error. Such inadvertently produced documents or information shall be considered
Confidential Information under the Protective Order (Dkt. # 86) previously entered in this case.
Any party receiving any such inadvertently produced documents or information shall return them
to the producing party, upon request, within 10 days of receiving such request, delete any
versions of the documents it maintains and make no use of the information contained therein,
regardless of whether the receiving party agrees with the claim of privilege and/or work product
protection. Nothing in this Order shall prevent a receiving party from challenging the privilege
or protection asserted by the producing party by following the procedure outlines in Paragraph
15 of the Protective Order (Dkt. # 86). Pursuant to Fed. R. Civ. P. 26, the producing party bears
the burden of establishing the privilege or protection of all such challenged documents.
Disclosure of information or documents by the receiving party before the producing party
designates the information as protected shall not be deemed a violation of this Order. This Order

3

shall apply retroactively to documents produced by both parties in the Bolerjack case, prior to
the entry of this Order.
Dated December 6, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

4