Beck et al v. Shinseki et al

Filing 66

ORDER re 61 Joint MOTION For Order Regarding the Inadvertent Production of Privileged or Protected Documents. Signed by Chief Judge Terry L. Wooten on 06/30/2014.(bshr, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

Richard G. Beck, Beverly Watson,
Cheryl Gajadhar, Jeffrey Willhite,
and Lakreshia R. Jeffery, on behalf of themselves
and all others similarly situated,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
Eric K. Shinseki, in his official capacity as
)
Secretary of Veterans Affairs;
)
Rebecca Wiley, in her official capacity as the
)
former Medical Director of William Jennings
)
Bryan Dorn VA Medical Center;
)
Barbara Temeck, M.D., in her official capacity
)
as the Chief of Staff of William Jennings
)
Bryan Dorn VA Medical Center;
)
Ruth Mustard, RN, in her official capacity as the )
Director for Patient Care/Nursing Services of
)
William Jennings Bryan Dorn VA Medical Center; )
David L. Omura, in his official capacity as the
)
Associate Director of William Jennings Bryan
)
Dorn VA Medical Center; an
)
Jon Zivony, in his official capacity as the
)
Assistant Director of William Jennings Bryan
)
Dorn VA Medical Center,
)
)
Defendants.
)
)

C/A No. 3:13-cv-00999-TLW

ORDER REGARDING INADVERTENT PRODUCTION OF PRIVILEGED OR
PROTECTED DOCUMENTS
Upon the request of the parties in the above-captioned matter (Doc. #61), and pursuant to
pursuant to Federal Rule of Evidence 502(d), and in accordance with Federal Rule of Civil
Procedure 26(b)(5), it is hereby ORDERED:
1.

The parties are engaged in ongoing discovery, including the production of

significant quantities of information and documents, both hard copy documents and
electronically stored information (“ESI”). Documents produced to another party could include

materials subject to privilege or other legally recognized protections (hereinafter “privileged
information”) and therefore not subject to disclosure in discovery. Such inadvertent disclosure
of privileged information is possible despite due diligence and reasonable care taken to protect
privileged information. Thus, to facilitate this production and to protect all applicable privileges,
this Order invokes the protections afforded by Rule 502(d) of the Federal Rules of Evidence.
Accordingly, the provisions in Rule 502(b) will not apply to the disclosure of communications or
information in discovery in this matter, and the production of documents and ESI in this ongoing
discovery effort that contain information protected by the attorney client privilege, work product
doctrine, or any other applicable privilege or protection shall be deemed inadvertent and shall not
waive any applicable privilege or protection.
2.

Each party is entitled to decide the appropriate degree of care to exercise in

reviewing materials for privilege, taking into account the volume and sensitivity of the materials,
the demands of the litigation, and the resources that the party can make available. Irrespective of
the care that is actually exercised in reviewing materials for privilege, the Court hereby orders
pursuant to Rule 502(d) of the Federal Rules of Evidence that disclosure of privileged or
protected information or documents in discovery conducted in this litigation will not constitute
or be deemed a waiver or forfeiture—in this or any other federal or state proceeding—of any
claims of attorney-client privilege or work product protection that the disclosing Party would
otherwise be entitled to assert with respect to the information or documents and their subject
matter.
3.

If a party identifies information received from a producing party that appears on

its face to be privileged or otherwise protected information, the receiving party shall promptly
notify the producing party and shall not refer to, quote, cite, rely upon or otherwise use the
information until the producing party has acknowledged receipt of the communication and has
had fourteen (14) days to object to the use of such information pursuant to Paragraph 4 below.
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By notifying the producing party that information appears on its face to be privileged
information, the receiving party does not concede that the information is in fact covered by an
applicable privilege or protection and reserves the right to challenge any assertion of privilege or
protection.
4.

The producing party may assert a claim of privilege or protection (hereinafter

collectively “privilege”) as soon as practicable and no more than fourteen (14) days after either:
(1) receiving notice that the receiving party has notified the producing party that it has identified
information that appears on its face to be privileged; or (2) otherwise discovering that a produced
document contains privileged information. In asserting such a claim of privilege, the producing
party shall provide information sufficient to meet the requirements of Federal Rule of Civil
Procedure 26(b)(5)(A) and shall identify for each claim of privilege, at a minimum: (1) the
information subject to the claim, (2) the author, date, and addressees or recipients of the
document (where applicable), (3) the privilege being asserted, and (4) the basis for the claim of
privilege.
5.

Upon assertion of the privilege pursuant to Paragraph 4 above, the receiving party

must promptly return, sequester, or destroy the specified information and any copies it has; must
not use or disclose the information until the claim is resolved; and must take reasonable steps to
retrieve the information if the receiving party disclosed it before being notified. See Fed. R. Civ.
P. 26(b)(5)(B). If the receiving party does not agree with the privilege claim, the parties must
promptly meet and confer in an attempt to resolve the claim.

If meeting and conferring

regarding the privilege claim does not resolve the claim, the parties may, after diligently
attempting to resolve the matter, present the dispute to the Court, including, as appropriate,
presenting the information to the Court under seal for a determination of the claim.

The

producing party must preserve the information until the claim is resolved. See Fed. R. Civ. P.
26(b)(5)(B).
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6.

Once a document or information has been identified as privileged in accordance

with paragraph 3 above, no party shall in any way copy, reproduce, refer to, quote, cite, reply
upon, or otherwise use in any manner, any such document or its contents in any proceeding
unless and until the Court determines that the document is not protected from discovery or the
producing party withdraws the claim of privilege, except that in support of any motion to compel
release of information identified as privileged, a party may file, under seal, the information at
issue.

In the event that a document or information has been identified as privileged in

accordance with Paragraph 4 above after it has been filed on the docket, the party asserting a
claim of privilege shall, within three (3) business days after receiving notice of the filing, file a
motion to seal the docket entry and, if appropriate, substitute a redacted version.
7.

If the claim of privilege is upheld by the Court or if the receiving party agrees

with the claim of privilege, all copies of the privileged documents identified in accordance with
paragraph 3 above shall be returned to the producing party or destroyed. To the extent that notes
or records contain information the Court has determined to be privileged, the privileged portions
of any such note or record shall be permanently destroyed, deleted or redacted. The destroying
party shall then certify in writing to counsel for the producing party that such documents have
been returned or destroyed and that such notes either do not exist or have been destroyed. If ESI,
including images of documents, are produced on electronic media (e.g., CD, DVD, USB Drive,
etc.), the producing party may demand the immediate return of that electronic media containing
the inadvertently disclosed information, but only after the producing party provides a
replacement of the electronic media at the producing party’s expense, which shall be identical to
the original electronic media in all respects except for the deletion of the privileged information,
and the image of a blank document or notice of deletion may be substituted for the image of the
privileged information deleted so that document reference numbers and data concerning the
images of other documents on the electronic media need not be changed. Upon the provision of
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this replacement electronic media and demand for destruction of the original media containing
privileged information, the receiving party shall permanently delete or destroy any copies of the
privileged ESI.
8.

This Order applies to information covered by the attorney-client privilege and

attorney work-product doctrine, and thus constitutes a controlling court Order pursuant to
Federal Rule of Evidence 502(d) with respect to waiver. This Order also applies to any other
privilege or protection that the parties may properly assert to prevent the disclosure of
information, including, but not limited to, the Privacy Act and governmental privileges, such as
the deliberative process privilege.
9.

This Order does not preclude a Party from voluntarily waiving any claims of

privilege. The provisions of Rule 502(a) of the Federal Rules of Evidence apply when a Party
uses privileged information to support a claim or defense.
IT IS SO ORDERED.
s/ Terry L. Wooten
TERRY L. WOOTEN
Chief United States District Judge
June 30, 2014
Columbia, South Carolina

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AGREED TO BY:

Brad D. Hewett
Fed. Id. No. 10388
[e-mail]
Walton J. McLeod, IV
Fed. Id. No. 10549
[e-mail]
500 Taylor Street
Columbia, SC 29201
803.726.0123 (tel)
803.252.7145(fax)
Douglas J. Rosinski, Esq.
Fed. Id. 6995
701 Gervais St., Ste. 150-405
Columbia, SC 29201-3066
803.256.9555(tel)
888.492.3636(fax)
[e-mail]

Counsel for Plaintiffs

STUART F. DELERY
Assistant Attorney General
Civil Division
JOHN R. TYLER
Assistant Branch Director
Federal Programs Branch
/s/______________________________
MATTHEW A. JOSEPHSON
HECTOR G. BLADUELL
Trial Attorneys
Admitted Pro Hac Vice
United States Department of Justice
Civil Division, Federal Programs Branch
Post Office Box 883
Washington, D.C. 20044
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Defendants

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