APTERYX, INC v. USA

Filing 20

ORDER granting 18 Motion for Discovery "Claw Back" Order. Signed by Judge Francis M. Allegra. (Allegra, Francis) Copy to parties.

In The United States Court of Federal Claims
No. 13-117C
(Filed: December 24, 2013)
__________
APTERYX, INC.,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
__________
ORDER
__________
On December 19, 2013, the parties filed a joint motion for entry of an order pursuant to
Rule 502(d) of the Federal Rules of Evidence and Court of Federal Claims Rule 26(c)(1). The
motion is GRANTED. Pursuant to RCFC 1, 16, and 26, as well as Fed. R. Evid. 502(d), and in
order to facilitate discovery and avoid delays, the court hereby ORDERS as follows:
1.

The provisions of this order shall apply to all information that has been, or will
be, produced in this litigation, including electronically stored information.

2.

Pursuant to Fed. R. Evid. 502, the production of documents and data pursuant to
this order (or the viewing of said documents and data by the receiving party as
a prelude to production) shall not result in the waiver of the attorney-client
privilege or work-product protection as to those documents and data. Also, the
production of privileged or protected documents or data under this order (or the
viewing of said documents and data by the receiving party as a prelude to
production) shall not result in the waiver of the attorney-client privilege or workproduct protection as to those documents and data in any other federal or state
proceeding.

3.

If the producing party determines that it has produced a document or data to
which it wishes to assert a claim of privilege or protection, counsel for the
producing party shall notify the recipient promptly of its claim. As
part of the notification, the producing party’s counsel shall identify, by Bates
Number, the document to which the producing party is asserting a claim of
privilege or protection.

4.

Upon receiving notice of a claim of privilege or protection by the producing party
regarding a produced document or data, the recipient shall segregate, with
promptness and in accordance with RCFC 26(b)(5)(B), the specified document or
data, as well as any copies thereof, and the recipient shall not use the information
in the specified document or data, except as provided by RCFC 26(b)(5)(B), until
after the claim is resolved. If the court upholds – or if the recipient does not
challenge – the producing party’s claim of privilege as to the produced document
or data, the recipient shall return or dispose of the specified document or data,
as well as any copies thereof.

5.

At all times after the producing party provides the requisite notice, the
receiving party shall not refer to the allegedly privileged material in any
manner, whether written or oral, in any interrogatory, request for
admission, document request, interview, deposition, oral argument, trial or
submission to the court; nor will the receiving party disclose the substance
of that material to any third party; however, the receiving party may
reference the allegedly privileged or protected material to the court in
accordance with a motion challenging the assertion of privilege.

6.

This order assumes that counsel for the parties will act in good faith with
respect to claims of privilege. The recipient shall notify the producing
party’s counsel upon identification of any document or data which appears
to be potentially privileged or protected. Such notification shall not waive
the recipient’s ability to challenge any assertion of privilege or protection
made by the producing party as to the identified document. As part of the
notification, the recipient shall identify, by Bates Number, the document
or data at issue. The recipient shall segregate the specified document or
data, as well as any copies thereof, from the other materials, and the
recipient shall not use the information in the potentially privileged or
protected document or data, except as provided by RCFC 26(b)(5)(B), for
a period of 14 days after the date on which the recipient notifies the
producing party’s counsel. Within the 14–day period, or any other period
of time agreed to by the parties, the producing party shall determine
whether it will assert a claim of privilege or protection as to the identified
document, and its counsel shall notify the recipient of its determination.

7.

This order may be modified by the court for good cause. The court will be
inclined to grant any modification jointly proposed by the parties.

IT IS SO ORDERED.
s/ Francis M. Allegra
Francis M. Allegra
Judge
-2-