EXTREME COATINGS, INC. v. USA

Filing 18

ORDER Stipulated Non-Waiver Agreement Pursuant to Federal Rule of Evidence 502 Regarding Production of Documents. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.

In the United States Court of Federal Claims
No. 12-516 C
(Filed May 29, 2013)
* * * * * * * * * * * * * * * *
EXTREME COATINGS, INC.
*
*
Plaintiff,
*
*
v.
*
*
THE UNITED STATES,
*
*
Defendant.
*
* * * * * * * * * * * * * * * *
STIPULATED NON-WAIVER
AGREEMENT PURSUANT TO FEDERAL RULE
OF EVIDENCE 502 REGARDING PRODUCTION OF DOCUMENTS
Pursuant to Federal Rule of Evidence (FRE) 502, this agreement
(Agreement) sets forth the understanding by and between Extreme Coatings, Inc.
(ECI) and the United States Government (United States or Government)
(collectively the Parties) regarding the Parties’ production of documents in
discovery in the above captioned case (the Case). This Agreement governs
documents that ECI or the Government claims are protected from disclosure by the
attorney-client, work-product, or other executive privileges (the Privileged
Material).
WHEREAS, the Parties will be producing documents, including
Electronically Stored Information, in this Case both for purposes of initial
disclosures pursuant to Court of Federal Claims Rule 26(a)(1)(A), as well as in
response to discovery requests (Documents). In connection with such productions,
the Government intends to take reasonable steps to prevent the inadvertent
disclosure of Documents that are Privileged Materials by, for example, conducting
an electronic privilege review which will involve searching for attorneys’ last

names and key terms related to the rendering of legal advice, and will withhold any
Privileged Materials from production following a review and good-faith
determination that, in the Government’s view, the Privileged Materials are
privileged. The Government intends to follow this procedure with each of the
document productions that it is required to undertake in discovery in the Case.
WHEREAS, ECI has advised the Government that it will follow procedures
for production of Documents similar to those described in the preceding paragraph.
WHEREAS, Documents may contain Privileged Materials not subject to
discovery under the Court of Federal Claims Rules, the Federal Rules of Evidence,
or other applicable sources of law.
WHEREAS, the Parties acknowledge that, despite each Party’s best efforts
to conduct a thorough pre-production review of Documents, some Privileged
Materials may be inadvertently disclosed to the other Party during the course of
discovery in the Case.
WHEREAS, the Parties seek to establish a mechanism to avoid waiver of
privilege as a result of the inadvertent disclosure of Privileged Materials and
therefore the parties have stipulated that the following clauses shall govern the
production of Documents in the Case.
WHEREAS, ECI and the Government jointly have moved this Court for the
entry of this Agreement as an Order of the Court governing the production of
Documents in the Case, the terms of which are set forth in this Order, and good
cause therefore having been shown, now therefore it is ORDERED as follows:
1.

If the Party producing documents (the Producing Party) discovers that
it has produced Privileged Materials to the Party receiving the
documents (the Receiving Party) and does not wish to waive the
privilege, the Producing Party will notify the Receiving Party in
writing that Privileged Materials, identified by Bates number(s), have
been produced, and provide the Receiving Party with a privilege log
identifying the Privileged Materials with sufficient specificity to allow
the Receiving Party to evaluate the Producing Party’s privilege
claim(s). Within ten (10) business days of receiving such written
notification from the Producing Party, the Receiving Party will:
2

(a) return the production media containing the Privileged Materials;
(b) destroy all other electronic or paper copies of the Privileged
Materials in its possession or control; and (c) make reasonable efforts
to delete the Privileged Materials from any database or other medium
in the Receiving Party’s possession or control in which the Privileged
Materials are electronically stored. Within five (5) business days of
the destruction of all copies of the Privileged Materials in its
possession or control, the Receiving Party will provide a written
certification confirming such destruction to the Producing Party.
Within ten (10) business days following the Producing Party’s receipt
of such written notification confirming the destruction of the
Privileged Materials, the Producing Party will provide, unless
otherwise stipulated by the Parties, the Receiving Party with a new
production media containing versions of all of the Documents on the
original production media, except for the Privileged Materials.
2.

If the Receiving Party discovers that it has received one or more
Documents from the Producing Party that, in the judgment of the
Receiving Party, appear to be Privileged Materials, the Receiving
Party promptly will notify the Producing Party in writing that such
Documents have been produced, and will identify the Documents by
Bates number(s). If the Producing Party notifies the Receiving Party
in writing that the Documents are indeed Privileged Materials and that
the Producing Party does not wish to waive the privilege, the
Receiving Party will take the steps described in Paragraph 1 above
regarding the Privileged Materials. Within ten (10) business days
following the Producing Party’s receipt of the Receiving Party’s
written notification confirming the destruction of the Privileged
Materials, the Producing Party will provide, unless otherwise
stipulated by the parties, the Receiving Party with: (a) a new
production media containing versions of all of the Documents on the
original production media, except for the Privileged Materials; and (b)
a privilege log identifying the Privileged Materials.

3.

In connection with Documents produced by ECI or the Government,
and consistent with FRE 502(b), the inadvertent disclosure of any
Document which is subject to a legitimate claim that the Document
should have been withheld as Privileged Material shall not waive any
3

privilege for that Document or for the subject matter of the
inadvertently disclosed Document in the present case or any other
federal or state proceeding.
4.

The Receiving Party and its agents shall not use, copy, transfer, or
distribute any information acquired from the Privileged Materials. If
the Receiving Party believes that a Document claimed as privileged is
not, in fact, Privileged Material and wishes to use or disclose the
Document, prior to taking any such action, the Receiving Party will so
notify the Producing Party in writing, setting forth the reasons why
the Receiving Party does not consider the Document to be privileged,
and requesting the Producing Party’s consent prior to using or
disclosing the Document. The Producing Party promptly will, in
writing, either consent to the Receiving Party’s use or disclosure of
the Document, or advise the Receiving Party that it disagrees with the
Receiving Party (setting forth the reasons for this disagreement) and
does not consent to the Receiving Party’s use or disclosure of the
Privileged Material. If the Producing Party does not consent to the
Receiving Party’s use or disclosure of the Privileged Material, the
Receiving Party, in its sole discretion, may promptly take the
necessary steps to permit the United States Court of Federal Claims to
conduct in camera review to entertain arguments from the Parties and
to decide whether the document is protected from disclosure by the
asserted privilege(s) and/or whether such protection has been waived
or is otherwise inapplicable. In these limited circumstances, the
Receiving Party may segregate and retain a single copy of the
Privileged Material, solely for seeking Court determination. The
Privileged Material will remain segregated and sealed unless and until
the United States Court of Federal Claims, or the United States Court
of Appeals for the Federal Circuit, authorizes the Privileged
Material’s use or disclosure, subject to the next sentence. In the event
that the United States Court of Federal Claims rules that the Receiving
Party may use or disclose the Document claimed as privileged but
determined to not be privileged or where the privilege has been
deemed waived, the Receiving Party must continue to segregate and
seal such Document only if the Producing Party notifies the Receiving
Party in writing of its intent to appeal the United States Court of
Federal Claims ruling within ten (10) calendar days of receipt of the
4

ruling. If the Receiving Party elects not to take the necessary steps to
permit the United States Court of Federal Claims to entertain
arguments with regard to such a Document that the Receiving Party
believes is not privileged, as to which the Receiving Party believes
privilege has been waived or is otherwise inapplicable, the Receiving
Party shall not use or disclose the Privileged Material, and will
continue to comply with the provisions of this Agreement.
5.

Any Privileged Material inadvertently disclosed by the Producing
Party to the Requesting Party shall be and remain the property of the
Producing Party.

6.

This Agreement is intended to be consistent with FRE 502 and is not
to be construed to diminish either Party’s rights or obligations as
therein described.
It is so ORDERED.

/s/ Lynn J. Bush
LYNN J. BUSH
Judge

5