Federal Trade Commission v. Amazon.com Inc

Filing 123

STIPULATED RULE 502(D) ORDER. Signed by Judge John H. Chun. (SB)

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The Honorable John H. Chun 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 FEDERAL TRADE COMMISSION, Plaintiff, 11 12 13 v. CASE NO. 2:23-cv-0932 STIPULATED RULE 502(D) ORDER AMAZON.COM, INC., et al., Defendants. 14 15 16 1. NON-WAIVER 17 IT IS ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any documents, 18 electronically stored information (ESI) or information, whether inadvertent or otherwise, in this 19 proceeding shall not, for the purposes of this proceeding or any other federal or state proceeding, 20 constitute a waiver by the producing party of any privilege applicable to those documents, 21 including the attorney-client privilege, attorney work-product protection, or any other privilege or 22 protection recognized by law. This Order shall be interpreted to provide the maximum protection 23 allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. Nothing 24 contained herein is intended to or shall serve to limit a party’s right to conduct a review of 25 documents, ESI or information (including metadata) for relevance, responsiveness and/or 26 STIPULATED RULE 502(D) ORDER CASE NO. 2:23-CV-0932 - 1 1 segregation of privileged and/or protected information before production. Documents or 2 information produced in discovery that is protected as privileged or work product (“Privileged 3 Documents”) shall be immediately returned to the producing party. 4 2. RECEIPT OF INADVERTENTLY PRODUCED PRIVILEGED DOCUMENTS 5 In the event that a receiving party discovers that it received documents or information it 6 knows or reasonably should know are inadvertently produced Privileged Documents, it shall 7 provide written notice to the producing party identifying the subject documents or information 8 within 14 calendar days of discovery by counsel. 9 3. CLAWBACK PROCEDURE 10 In the event that a producing party discovers that it produced Privileged Documents, it shall 11 provide written notice of the claim to the receiving party (a “Clawback Notice”) identifying the 12 subject Privileged Documents within 14 calendar days of their discovery by counsel or notification 13 under Section 2. The Clawback Notice shall include a privilege log (in the format agreed by the 14 parties) listing the item(s) produced and, if the producing party claims that only a portion of the 15 Privileged Documents contain privileged or otherwise protected material, a new copy of the 16 document redacted to protect only the portion(s) claimed to be privileged or work product. 17 4. 18 PROCEDURES FOLLOWING CLAWBACK NOTICE 4.1 No Challenge: Within ten calendar days of receipt of a Clawback Notice (unless 19 the receiving party challenges the producing party’s claim of privilege as set forth below), or a 20 determination by the Court following a challenge that documents produced are Privileged 21 Documents, the receiving party must promptly return and/or destroy the Privileged Document, all 22 copies thereof, and any notes that reproduce, copy, or otherwise disclose the substance of the 23 information for which privilege is claimed, and notify the producing party when this is complete. 24 25 26 4.2 Challenge: If a receiving party challenges a claim that a document specified in a Clawback Notice is privileged or work-product-protected: (i) The receiving party shall notify the producing party of its challenge (and STIPULATED RULE 502(D) ORDER CASE NO. 2:23-CV-0932 - 2 1 the reasons therefor) within ten calendar days of receiving the Clawback Notice 2 asserting the claim. The receiving party shall sequester the challenged document, 3 all copies thereof, and any notes that reproduce, copy, or otherwise disclose or use 4 the substance of the information for which privilege is claimed, until the claim has 5 been resolved. 6 (ii) 7 of the challenge, the parties shall meet and confer in an effort to resolve their 8 disagreement. If the parties are unable to reach agreement, within ten business days 9 of the meet and confer, the parties shall submit a joint discovery letter to the Court, Within seven calendar days of the producing party’s receiving notification 10 submitting the issue for a determination and/or for in camera review. 11 document(s) listed in the Clawback Notice shall not be used or disclosed by the 12 receiving party during the time in which the parties are meeting and conferring 13 about the privileged nature of the document(s) or during the time in which the 14 challenge is before the Court for determination, unless otherwise agreed in writing 15 by the parties or ordered by the Court. The producing party shall bear the burden 16 of establishing the privileged or protected nature of the document(s). 17 (iii) 18 for its own use containing the date, author, addresses, and topic of the challenged 19 materials and such other information as is reasonably necessary to identify the 20 challenged materials and describe their nature to the Court in any joint discovery 21 letter regarding the challenge. 22 23 5. The Nothing herein shall prevent the receiving party from a preparing a record PROCEDURES DURING DEPOSITIONS AND HEARINGS 5.1 If, during a deposition, a producing party claims that a document being used in the 24 deposition (e.g., marked as an exhibit, shown to the witness, or made the subject of examination) 25 contains material that is privileged or protected work product, the producing party may (a) allow 26 the document to be used during the deposition without waiver of any claim of privilege or other STIPULATED RULE 502(D) ORDER CASE NO. 2:23-CV-0932 - 3 1 protection; (b) instruct the witness not to answer questions concerning the parts of the document 2 containing privileged or protected material; or (c) object to the use of the document at the 3 deposition to the extent the entire document is privileged or work-product-protected, in which case 4 no testimony may be taken relating to the document during the deposition until the matter is 5 resolved by agreement or by the Court. If the producing party allows the examination concerning 6 the document to proceed consistent with this paragraph, all parties shall sequester all copies of the 7 document(s) in dispute. As to any testimony subject to a claim of privilege or work product, the 8 producing party shall serve a Clawback Notice within fourteen calendar days of the deposition, 9 after which the parties shall follow the procedures set forth in Section 4. Pending determination 10 of the clawback dispute, all parties with access to the deposition transcript shall treat the relevant 11 testimony in accordance with Section 4. 12 5.2 If a receiving party uses a document or other information in a brief or at a hearing 13 and the producing party has not served a Clawback Notice as to those materials in advance of the 14 briefing event or hearing, the producing party shall serve a Clawback Notice within fourteen 15 calendar days of filing of the brief or date of the hearing if claiming that any materials used by the 16 receiving party are attorney client privileged or protected work product. Thereafter, the procedures 17 set forth in Section 4 shall apply. 18 19 20 PURSUANT TO STIPULATION, IT IS SO ORDERED. 21 22 DATED this 14th day of November, 2023. 23 24 25 A JOHN H. CHUN UNITED STATES DISTRICT JUDGE . 26 STIPULATED RULE 502(D) ORDER CASE NO. 2:23-CV-0932 - 4 1 Presented By: 2 FEDERAL TRADE COMMISSION Attorneys for Plaintiff 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By s/ Evan Mendelson Evan Mendelson, D.C. Bar #996765 Olivia Jerjian, D.C. Bar #1034299 Thomas Maxwell Nardini, IL Bar #6330190 600 Pennsylvania Avenue NW Washington, DC 20580 (202) 326-3320; emendelson@ftc.gov (202) 326-2749; ojerjian@ftc.gov (202) 326-2812; tnardini@ftc.gov Colin D. A. McDonald, WSBA # 55243 Federal Trade Commission 915 Second Ave., Suite 2896 Seattle, WA 98174 (206) 220-4474; cmacdonald@ftc.gov DAVIS WRIGHT TREMAINE LLP By s/ Kenneth E. Payson Kenneth E. Payson, WSBA #26369 James Howard, WSBA #37259 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 Telephone: (206) 622-3150 Fax: (206) 757-7700 E-mail: kenpayson@dwt.com jimhoward@dwt.com COVINGTON & BURLING LLP Stephen P. Anthony* Laura Flahive Wu* Laura M. Kim* John D. Graubert* 850 Tenth Street, NW Washington, DC 20001 Telephone: (206) 662-5105 E-mail: santhony@cov.com lflahivewu@cov.com lkim@cov.com jgraubert@cov.com John E. Hall* 415 Mission Street, Suite 5400 MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER - 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 San Francisco, CA 94105 Telephone: (415) 591-6855 E-mail: jhall@cov.com Megan L. Rodgers* 3000 El Camino Real Palo Alto, CA 94306 Telephone: (650) 632-4734 E-mail: mrodgers@cov.com HUESTON HENNIGAN LLP John C. Hueston* Moez M. Kaba* Joseph A. Reiter* 523 West 6th Street, Suite 400 Los Angeles, CA 90014 Telephone: (213) 788-4340 E-mail: jhueston@hueston.com mkaba@hueston.com jreiter@hueston.com *Admitted pro hac vice on behalf of Defendant Amazon.com, Inc. and pro hac vice application forthcoming on behalf of Defendants Lindsay, Grandinetti, and Ghani Attorneys for Defendants AMAZON.COM, INC., LINDSAY, GRANDINETTI, AND GHANI 17 18 19 20 21 22 23 24 25 26 STIPULATED RULE 502(D) ORDER CASE NO. 2:23-CV-0932 - 6

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