Mlsna, Mark v. Union Pacific Railroad

Filing 19

ORDER Governing the Disclosure of Privileged Information. Signed by Magistrate Judge Stephen L. Crocker on 8/31/2018. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MARK MLSNA,
CASE NO. 3:18-cv-00037

Plaintiff,

PARTIES' JOINT STIPULATED FED. R.
EVID. 502(d) ORDER GOVERNING
THE DISCLOSURE OF PRIVILEGED
INFORMATION

V.

UNION PACIFIC RAILROAD CO.,
Defendant.

Plaintiff, Mark Mlsna , and Defendant, Union Pacific Railroad Company, by and
through their respective counsel , have jointly stipulated to the terms of Stipulated Order
Governing the Disclosure of Privileged Information, and with the Court being fully
advised as to the same, it is hereby ORDERED :

I.

APPLICABILITY

1.

This Order shall be applicable to and govern all deposition transcripts

and/or videotapes, and documents produced in response to requests for production of
documents, answers to interrogatories , responses to requests for admissions, affidavits,
declarations and all other information or material produced , made available for
inspection, or otherwise submitted by any of the parties in this litigation as well as
testimony adduced at trial or during any hearing (collectively "Information").
II.

PRODUCTION OF DISCOVERY MATERIALS CONTAINING POTENTIALLY
PRIVILEGED INFORMATION

2.

The production of any privileged or otherwise protected or exempted

Information, as well as the production of Information without an appropriate designation

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of confidentiality, shall not be deemed a waiver or impairment of any claim of privilege
or protection , including , but not limited to , the attorney-client privilege, the protection
afforded to work product materials, or the subject matter thereof, or the confidential
nature of any such Information , as to the produced

Information , or any other

Information.

3.

The production of privileged or work-product protected documents ,

electronically stored information

("ESI") or information , whether inadvertent or

otherwise, is not a waiver of the privilege or protection from discovery in this case or in
any other federal or state proceeding . This Order shall be interpreted to provide the
protection allowed by Federal Rule of Evidence 502(d) .
4.

The producing party must notify the receiving party promptly, in writing ,

upon discovery that a document that is privileged and/or work product material has
been produced. Upon receiving written notice from the producing party that privileged
and/or work product material has been produced , all such information , and all copies
thereof, shall be returned to the producing party within ten (10) business days of receipt
of such notice and the receiving party shall not use such information for any purpose ,
except as provided in paragraph 5, until further Order of the Court. The receiving party
shall also attempt, in good faith , to retrieve and return or destroy all copies of the
documents in electronic format.
5.

The receiving party may contest the privilege or work product designation

by the producing party, shall give the producing party written notice of the reason for
said disagreement. In that event, the receiving party shall return the allegedly privileged

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document and the producing party shall provide a log entry for the document.

The

receiving party may not challenge the privilege or immunity claim by arguing that the
disclosure itself is a waiver of any applicable privilege. In that instance, the receiving
party shall, within fifteen (15) business days from the initial notice by the producing
party, seek an Order from the Court compelling the production of the material. If no
such Order is sought, upon expiration of the fifteen (15) day period , then all copies of
the disputed document shall be returned in accordance with this parag raph .
6.

Any analyses, memoranda or notes which were internally generated

based upon such produced information shall be destroyed in the event that (a) the
receiving party does not contest that the information is privileged , or (b) the Court rules
that the information is privileged .
7.

Nothing contained herein is intended to or shall serve to limit a party's right

to conduct a review of documents , ESI or information (including metadata) for
relevance , responsiveness and/or segregation of privileged and/or protected information
before production .

Ill.

PRIVILEGE LOGGING
8.

The following documents presumptively need not be included on a

privilege log :
a. Written or oral communications between a party and its counsel after
commencement of this litigation and work product material created
after commencement of this litigation .
b. Work product created by outside counsel , or by an agent of outside
counsel other than a party after commencement any litigation.
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c. Written or oral communications , made after commencement of this
litigation , between a party and its in-house counsel whose primary role
it to manage litigation.
9.

An email thread for which a party claims a privilege may be logged in a

single entry.

SO ORDERED this ; (sr:ay of 8 U6UJ[2018.

BY~:cuyt:

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