Tanski v. AvalonBay Communities, Inc.

MOTION for Protective Order regarding inadvertent production of privileged material

E.D.N.Y.March 8, 2016

LTNITED STATES DISTRICT COURT :iïi:i:::::::"i)::::Y. . . .,( TIMOTHY TANSKI, on behalf of himself and others similarly sìtuated, Plaintiff, 2: I 5 -cv -A6260 (LDWXAKT) - against - AVALONBAY COMMUNITIES, INC., ;;;;;"*,- i; :::"-,* oåu* REGARDTN* INADVERTENT PRODUCTION OF PRIVTLEGED MATARIAL AvalonBay Communities, Inc, ("Defendant"), through its attorneys, Epstein Becket & Green, P.C,, and Timothy Tanski ("Plaintiff'), through his attorneys, Hach Rose Schirripa & Cheverie LLP, hereby stipulate and agree as follows: 1. The parties are in the process of conducting discovery, including, but not limited to, discovery of electronically stored information ("ËSI") related to this litigation. Given the potential volume of discovery, including ESl, the parties recognize that a party may inadvertently produoe documents protected from disclosure by the attorney-client and/or work product privileges, To facilitate the expeditious production of such discovery, the parties hereby enter into this Stipulation to ensure that such privileges are prcserved. 7. 'I'he inadvertent production of any document or other information during discovery in this action shall be without prejudice to any claim that such material is protected by any legally cognizable privilege or the work product doctrinc, and no party shall be held to have waived any rights by such inadvertent production. There shall be no waiver of privilege FIRM:34854432v1 Case 2:15-cv-06260-AKT Document 38 Filed 03/08/16 Page 1 of 4 PageID #: 226 regardless of the degree of care or precautions undertaken by any pa$y and rcgardless of the tneasures taken to prevent the production of privileged material. 3. Any party that learns of an inadvertent disclosure of privileged or ptotected documents or information by any pafi;y herein must noti$ the producing party and any other receiving pafty promptly in writing after becoming aware of the inadvertent disclosure. Upon learnìng of an inadvertent disclosure, all receiving parties shall treat such inadvertently disclosed documents or information in accorclance with palagraphs 4 through 8. These provisions apply regardless of which party initially discovers the inadvertent or mistaken disclosure of doouments or information subject to a claim of attorney-client privilege, rvork product immunity, or any other protection from discovery, 4, Upon reoeiving written notice that a party has inadvertently disclosed privileged or otherwise protected documents or information, the party or parties that received said documents or information shall not review, copy or disseminate such documents or information, The party or parties that received said documents or irrformation shall within three (3) business days return all copies to the party that produced the material or certify that all such copies have been destroyed and certify that it has destroyed all notes, excerpts, summaries, or any other materials oontaining information from said documents or information. 5, lf the receiving party contends a document or information is not privileged, within three (3) business days ofreceiving notice ofthe inadvertent production the receiving party shall notify the producing party that it intends to move for an order allowing the use of an inadveúently produced privileged document or information, Oncc the receiving party notifies the producing party that it intends to move for an orcler that the document or information in question is not properly subject to any privilege claims, it must fìle its motion under seal within 2 FIRM:34854432v1 Case 2:15-cv-06260-AKT Document 38 Filed 03/08/16 Page 2 of 4 PageID #: 227 fourteen (14) days of providing such notice in conformity with the procedures set forth by the Clerk of the Court and/or the lndividual Practice Rules of the assigned judges. In connection with such a motion, the moving party shall not asseft as a ground for disclosure the fact or circumstances of the inadvertent clisclosure. The party assefting the privilege rctains the burden of proving the privïleged status of the document or information ancl shall file its opposition under seal and submit a copy of the document or information in question for in camera review by the court. 6, The receiving party shall notify the producing party of any discovery of any apparently privileged materials within five (5) business days of such discovery and shall return all copies or reproductions of the suspected privileged material to the producing party within three (3) business days upon request. The receiving party shall not use such items for any purpose until further notice of the Court. Such inadvertent production shall not be deemed a waiver of the applicable privilege or protection. 7. The return of any disoovery item to the producing party shall not in any way preclude the receiving party from moving the Court for a ruling that the document or thing was never privileged and should be produced. Such motion shall not rely upon in any manncr or âssert as a ground for entering such an Order the fact or circumstances of the inadvertent production. 8. To the extent that the allegedly privìleged rnaterial contained in a document has already been use