Securities and Exchange Commission v. Lester et al

Filing 33

STIPULATED RULE 502(D) ORDER by Magistrate Judge Craig B. Shaffer on 01/28/16. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Case No. 1:15-cv-02301-CMA-CBS
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff,
v.
DONALD J. LESTER,
RUBICON ALLIANCE, LLC,
CFI FUND, LLC, and
NUPOWER, LLC,
Defendants,
EQUITY EDGE PREFERRED INCOME FUND I, LLC,
EQUITY EDGE, LLC, and
EQUITY EDGE COMPANIES, LLC,
Relief Defendants.
STIPULATED RULE 502(D) ORDER
The parties agree that the inadvertent production of any privileged or otherwise
protected information in this litigation is not a waiver of the privilege or protection in this
case or in any other federal or state proceeding. This Order shall be interpreted to
provide the maximum flexibility allowed by Federal Rule of Evidence 502(d).
(a) If, in connection with the pending litigation, a party (the “Disclosing Party”)
inadvertently discloses information subject to any claim of privilege, including attorneyclient privilege or attorney work product protection (“Inadvertently Disclosed
Information”), the disclosure of the Inadvertently Disclosed Information shall not
constitute or be deemed a waiver or forfeiture of any claim of privilege or work product
protection that the Disclosing Party would otherwise be entitled to assert with respect to

the Inadvertently Disclosed Information and its subject matter in this case or in any
other federal or state proceeding.
(b) If a claim of inadvertent disclosure is made in writing by a Disclosing Party
with respect to Inadvertently Disclosed Information, the party who received the
Inadvertently Disclosed Information (“Receiving Party”) shall, at the Disclosing Party’s
request, within five (5) business days, sequester, return, or destroy all copies of the
Inadvertently Disclosed Information and confirm in writing that all such Inadvertently
Disclosed Information has been sequestered, returned, or destroyed. Once the
Disclosing Party makes a claim of inadvertent disclosure, the Receiving Party must
refrain from viewing such material or using such material in any way. Whether
Inadvertently Disclosed Information is sequestered, rather than returned or destroyed,
depends on Receiving Party’s challenge to the assertion of privilege. If Receiving Party
does not challenge the assertion of privilege, the Receiving Party shall, within five (5)
business days, return or destroy all copies of the Inadvertently Disclosed Information
and confirm in writing that all such Inadvertently Disclosed Information has been
returned or destroyed. If Receiving Party does challenge the assertion of privilege, the
Receiving Party shall sequester the Inadvertently Disclosed Information and, within five
(5) business days, shall notify the Disclosing Party of the disagreement regarding the
Inadvertently Disclosed Information’s privileged status. If the parties are unable to
resolve the disagreement, the Receiving Party shall, within ten (10) business days of
first notifying Disclosing Party of its disagreement regarding the Inadvertently Disclosed
Information’s privileged status, file a motion with the Court challenging the assertion of
privilege by the Disclosing Party (a “Privilege Motion”). The Privilege Motion shall not

attach or reveal Inadvertently Disclosed Information or shall be filed under seal, and the
Privilege Motion shall not assert as a ground for entering such an Order the fact or
circumstances of the inadvertent production. After the filing of a Privilege Motion, the
Receiving Party shall continue to refrain from viewing or using the material in any way
unless and until the Court makes a determination as to its proper designation or
disposition.
(c) In the event the Receiving Party believes that the Disclosing Party
inadvertently produced privileged or protected material, the Receiving Party shall notify
the Disclosing Party in writing and identify the suspected privileged or protected material
within five (5) business days of such discovery. Once the Receiving Party believes that
there has been an inadvertent disclosure, the Receiving Party must refrain from viewing
such material or using such material in any way pending resolution of the privilege
claim. Within five (5) days of notification by the Receiving Party, the Disclosing Party
must make a claim of privilege in writing. The parties shall thereafter follow the
procedures and terms specified in Section (b) of this agreement.
(d) The Disclosing Party shall preserve and maintain a copy of all Inadvertently
Disclosed Information in the form in which it was produced until the termination of all
litigation in this matter, including any appeals.
(e) In order to mitigate the time and expense associated with privilege logs, the
parties agree that certain privileged and confidential communications do not need to be
included in a privilege log. These communications include (i) privileged and confidential
communications between Holland & Hart and Defendants and Relief Defendants; and
(ii) privileged and confidential communications between SEC employees. The parties

also agree that documents and tangible things prepared by Holland & Hart or the SEC
in anticipation of litigation in this case, or for trial in this case, do not need to be placed
on a privilege log.
(f) The parties agree that Defendants’ and Relief Defendants’ communications
with other counsel, and SEC communications with other governmental agencies outside
the SEC, shall be logged if responsive to discovery in this matter. The parties further
agree that any privilege log prepared in this matter may log: (i) an email and all of its
attachments in a single entry, but with each attachment described; and (ii) related email
strings in a single entry, identifying the date range of the email and all of the participants
collectively (even if some participants are included in only certain emails within the
string) and the subject matter(s) generally. The parties agree that such entries shall be
sufficient to preserve any assertion of privilege for each individual item within the
collective as though each was set forth on the log individually.

APPROVED:
s/Mark L. Williams
Mark L. Williams
Danielle Voorhees
U.S. Securities and Exchange Commission
Denver Regional Office
1961 Stout Street, Suite 1700
Denver, CO 80294
[phone]
[e-mail]
[e-mail]

Counsel for Plaintiff

s/ Matthew J. Smith
Matthew J. Smith
Brian Neil Hoffman
Jessica J. Smith
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Defendants and Relief Defendants

Dated this 28th day of January, 2016.
BY THE COURT:

Craig B. Shaffer
United States Magistrate Judge