Wixon et al v. Wyndham Resort Development Corp., et al, No. 3:2007cv02361 - Document 206 (N.D. Cal. 2009)
Court Description: ORDER GRANTING 205 Stipulation Supplementing Protective Order Regarding Privileged Documents in Discovery. Signed by Judge Jeffrey S. White on 1/28/09. (jjo, COURT STAFF) (Filed on 1/28/2009)
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Wixon et al v. Wyndham Resort Development Corp., et al Case 3:07-cv-02361-JSW 1 2 3 4 5 6 7 8 9 10 Doc. 206 Document 205 Filed 01/27/2009 Page 1 of 6 SCHIFF HARDIN LLP Stephen M. Hankins (CSB #154886) Jeffrey V. Commisso (CSB #191267) One Market, Spear Street Tower, 32nd Floor San Francisco, CA 94105 Telephone: (415) 901-8700 Facsimile: (415) 901-8701 TROUTMAN SANDERS, LLP1 J. Kirk Quillian A. William Loeffler William M. Droze 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, GA 30308-2216 Telephone: (404) 885-3000 Facsimile: (404) 885-3900 Attorneys for Defendant WYNDHAM RESORT DEVELOPMENT CORPORATION 11 13 ATTORNEYS AT LAW UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA ATLANTA TROUTMAN SANDERS LLP 12 15 CLARKE and REBECCA WIXON and NORMAN and BARBARA WIXON, 16 derivatively and on behalf of themselves and all others similarly situated, 17 Plaintiffs, 18 v. 19 WYNDHAM RESORT DEVELOPMENT 20 CORP. (f/k/a Trendwest Resorts, Inc.), GENE HENSLEY, DAVID HERRICK, 21 JOHN HENLEY, PEGGY FRY, JOHN McCONNELL, and nominally, 22 WORLDMARK, THE CLUB, 23 Case No.: C 07-02361 JSW [PROPOSED] STIPULATED ORDER SUPPLEMENTING PROTECTIVE ORDER REGARDING PRIVILEGED DOCUMENTS IN DISCOVERY Defendants. 24 25 1 Admitted pro hac vice. 26 27 28 STIPULATED SUPPLEMENTAL PROTECTIVE ORDER C 07-02361-JSW -1- Dockets.Justia.com Case 3:07-cv-02361-JSW 1 2 3 Document 205 Filed 01/27/2009 Page 2 of 6 On October 15, 2007, the parties stipulated, and the Court entered, a Stipulated Protective Order [Doc. No. 37] to govern the production of documents deemed confidential within the course and scope of discovery in this action. On November 26, 4 5 6 7 8 9 10 2007, Gene Hensley, David Herrick, Peggy Fry, John Henley, and John McConnell (collectively “Director Defendants”) were added as parties to the Stipulated Protective Order. [Doc. No. 62] As part of a separate discovery agreement, Defendant Wyndham Resort Development Corp. (“WRDC”) is in the process of preparing a production of Electronically Stored Information (“ESI”) specific to certain document custodians and 11 search terms identified by Plaintiffs Clarke and Rebecca Wixon, and Norman and 13 ATTORNEYS AT LAW 14 ATLANTA TROUTMAN SANDERS LLP 12 Barbara Wixon, (collectively “Plaintiffs”). Because of the volume and the timing associated with this production, Plaintiffs have agreed to treat all ESI produced by 15 WRDC as part of this production as confidential under the Stipulated Protective Order, 16 and WRDC has agreed to produce responsive ESI without a prior review of the ESI, 17 subject only to an electronic privilege screen of the ESI by WRDC’s electronic discovery 18 vendor. Without prior review of the ESI being produced using the process to which the 19 20 21 parties have agreed, there exists the likelihood that privileged material may be inadvertently produced. Because WRDC also maintains data on behalf of WorldMark, 22 The Club (“WorldMark”) pursuant to its Management Agreement, the Director 23 Defendants share an interest in avoiding any inadvertent production of privileged 24 material. The unique relationship of the parties and the complex nature of this litigation 25 26 contribute to the potential for the inadvertent production of privileged or protected information. 27 28 STIPULATED SUPPLEMENTAL PROTECTIVE ORDER C 07-02361-JSW -2- Case 3:07-cv-02361-JSW 1 2 3 Document 205 Filed 01/27/2009 Page 3 of 6 Pursuant to Fed.R.Civ.P. 26(c), Fed.R.Evid. 502, and the stipulation of the parties for entry of this Order, IT IS HEREBY ORDERED that the inadvertent or unintentional production of information by WRDC, the Director Defendants, or other 4 5 6 persons as part of this production containing, or otherwise disclosing, information that is subject to any claim of privilege or protection, including, but not limited to, the attorney- 7 client privilege and the protection afforded by the attorney work-product doctrine, shall 8 not be deemed a waiver in whole or in part of the claim of privilege or immunity from 9 production, either as to the specific information disclosed or as to any other information 10 relating thereto on the same or related subject matter. In particular, the production of 11 privileged or otherwise protected information by WRDC or the Director Defendants shall 13 ATTORNEYS AT LAW 14 ATLANTA TROUTMAN SANDERS LLP 12 15 16 17 18 not be deemed a waiver or an impairment of any claim of privilege or protection of WRDC or the Director Defendants, including, but not limited to, the attorney-client privilege and the protection afforded by the attorney work-product doctrine. To the extent that WRDC or the Director Defendants inadvertently disclose information that is privileged or otherwise immune from discovery under the attorneyclient privilege, work product doctrine or any other privilege, that party, upon discovery 19 20 21 of such inadvertent disclosure, shall promptly advise the Plaintiffs and request that the information be returned or destroyed. Within seven (7) days of receipt of notice of a 22 privileged disclosure, Plaintiffs shall return or destroy such inadvertently produced 23 information, including all copies, electronic and otherwise, and Plaintiffs shall confirm 24 their compliance with this Order in writing upon request. 25 26 This Order shall not prejudice the right of any party to challenge any other party’s claim that information is privileged on any grounds other than the inadvertent or 27 28 STIPULATED SUPPLEMENTAL PROTECTIVE ORDER C 07-02361-JSW -3- Case 3:07-cv-02361-JSW 1 2 3 Document 205 Filed 01/27/2009 Page 4 of 6 unintentional production of such information. Plaintiffs, upon returning or destroying inadvertently produced ESI pursuant to this Order, do not waive their right to challenge the status of the information at issue as being privileged and/or work product. In the 4 5 6 event of a dispute regarding whether any particular ESI produced pursuant to this Order is privileged and/or work product, this stipulation and Order does not alter the burden of 7 the producing party to demonstrate that the disputed information is properly the subject 8 of the privilege claimed under applicable law. 9 10 Nothing in this Order shall abrogate the protections against waiver of attorneyclient privilege or work product immunity set forth in Fed. R. Evid. 502, or the provisions 11 governing inadvertent failures to designate information or items as “Confidential” or 13 ATTORNEYS AT LAW 14 “Highly Confidential – Attorneys’ Eyes Only” contained in paragraph 5.3 of the Stipulated Protective Order [Doc. No. 37] entered October 15, 2007. ATLANTA TROUTMAN SANDERS LLP 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED SUPPLEMENTAL PROTECTIVE ORDER C 07-02361-JSW -4- Case 3:07-cv-02361-JSW 1 Document 205 Filed 01/27/2009 Page 5 of 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 Dated: January 26, 2009 GIRARD GIBBS LLP 4 By:___Jonathan K. Levine_____________ Jonathan K. Levine 5 6 Elizabeth C. Pritzker Daniel T. LeBel 601 California Street San Francisco, California 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 7 8 9 10 James Helfrich, Esq. Jordan Factor, Esq. Gersh & Helfrich, LLP 1860 Blake Street, Suite 300 Denver, Colorado 80202 Telephone: (303) 293-2333 11 13 ATTORNEYS AT LAW 14 ATLANTA TROUTMAN SANDERS LLP 12 Attorneys for Plaintiffs 15 16 Dated: January 26, 2009 17 SCHIFF HARDIN LLP By:______Stephen M. Hankins_________ Stephen M. Hankins 18 19 Jeffrey V. Commisso One Market, Spear Street Tower, 32nd Floor San Francisco, California 94105 Telephone: (415) 901-8700 Facsimile: (415) 901-8701 20 21 22 23 24 25 26 27 28 STIPULATED SUPPLEMENTAL PROTECTIVE ORDER C 07-02361-JSW -5- Case 3:07-cv-02361-JSW Document 205 1 6 7 Attorneys for Wyndham 3 4 5 8 Dated: January 26, 2009 9 10 LAW OFFICES OF JUDITH H. RAMSEYER By:__Judith H. Ramseyer__________ Judith H. Ramseyer 11 2025 First Avenue Suite 1150 Seattle, WA 98121 Telephone (206) 728-6872 Facsimile (206) 260-6689 12 13 ATTORNEYS AT LAW Page 6 of 6 J. Kirk Quillian A. William Loeffler William M. Droze TROUTMAN SANDERS, LLP 5200 Bank of America Plaza 600 Peachtree Street, N.E. Atlanta, Georgia 30308-2216 Telephone: (404) 885-3000 Facsimile: (404) 885-3900 2 14 ATLANTA TROUTMAN SANDERS LLP Filed 01/27/2009 15 KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP 16 17 20 Matthew G. Ball 55 Second Street, Suite 1700 San Francisco, California 94105-3493 Telephone (415) 882-8200 Facsimile (415) 882-8220 21 Attorneys for Director Defendants 18 19 22 23 24 PURSUANT TO STIPULATION, IT IS SO ORDERED. DATED: January _______________ 28, 2009 25 26 ____________________________________ Hon. Jeffrey S. White United States District Judge 27 28 STIPULATED SUPPLEMENTAL PROTECTIVE ORDER C 07-02361-JSW -6-
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