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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-2989-MDL-ALTONAGA/Torres
IN RE:
JANUARY 2021 SHORT SQUEEZE
TRADING LITIGATION
/
This Document Relates to the Federal Securities Actions
STIPULATED RULE 502(d) AND PRIVILEGED MATERIALS ORDER
Plaintiffs and Defendants (collectively, the “Parties”), by and through their respective
counsel, hereby stipulate and agree to the terms of this Rule 502(d) and Privileged Materials Order.
All capitalized terms that are not defined herein have the same meaning as those terms set forth in
the Stipulated Protective Order for the Federal Securities Actions.
I.
SCOPE
1.
This Order shall be applicable to any privileged or otherwise protected or exempted
information disclosed during the course of this litigation, including, but not limited to, deposition
transcripts (including exhibits) or videotapes, responses to requests for production of documents,
answers to interrogatories, responses to requests for admissions, affidavits, declarations,
electronically stored information (“ESI”), testimony or evidence adduced at trial or during any
hearing, and all other information or material produced or made available for inspection or
otherwise submitted by any of the parties in this litigation pursuant to the Federal Rules of Civil
Procedure or otherwise (collectively, “Information”).
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II.
PRODUCTION OF DISCOVERY MATERIALS CONTAINING POTENTIALLY
PRIVILEGED INFORMATION
2.
Pursuant to Federal Rule of Evidence 502(d), the inadvertent disclosure of any
privileged or otherwise protected or exempted Information in this case, shall not be deemed a
waiver or forfeiture of any claim of privilege or other protection — in this case or in any other
federal, state, regulatory, or congressional proceeding, or a proceeding before a self-regulatory
organization — that the producing Party would otherwise be entitled to assert with respect to the
Information and its subject matter.
3.
Nothing contained herein is intended to or shall serve to limit a Party’s duty to
conduct a review of documents, ESI (including metadata), or other Information for responsiveness
or segregation of privileged or protected information before production.
4.
The Party disclosing Information (the “Producing Party”) must promptly notify the
Party receiving the Information (the “Receiving Party”) in writing if it discovers that Information
has been produced for which the Producing Party asserts privilege or other protection. The notice
should be in the form of a “Clawback Notice,” and shall include:
a.
The Bates range of the produced materials; and
b.
A privilege log listing the item(s) produced in the form set forth in
Paragraphs 13–22 herein.
5.
The Producing Party shall make a good faith effort to produce a new copy of the
material (using the same Bates number as the original material) within seven (7) days after serving
the Clawback Notice with the privileged or protected Information redacted if the Producing Party
claims only a portion of the document contains privileged or otherwise protected Information, or,
if the Producing Party claims that the entire document is privileged or protected, a slip sheet noting
that the entire document is privileged.
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6.
Upon receipt of a Clawback Notice, the Receiving Party shall make good faith
efforts to immediately destroy or return all such Information, all copies thereof, and not use such
Information for any purpose. The Receiving Party shall certify to the Producing Party that all of
the inadvertently disclosed Information has been returned or destroyed in conformance with
mutually agreed standards.
7.
Nothing herein shall prevent the Receiving Party from preparing a record for its
own use containing the date, author, addresses, and topic of the inadvertently produced Disclosure
or Discovery Material to identify the Disclosure or Discovery Material and describe its nature to
the Court in any motion to compel production of the Disclosure or Discovery Material, consistent
with the procedures as set forth in Paragraphs 8 and 9, until further order of the Court.
8.
If the Receiving Party decides to contest the Producing Party’s assertion of
privilege or other protection, it must do so within seven (7) business days from receipt of the
Clawback Notice by serving upon the Producing Party a written “Notice of Clawback Challenge”
providing the reason(s) for challenging the assertion of privilege or protection. The Producing
Party will have seven (7) business days to respond to the Notice of Clawback Challenge in writing
by either: agreeing to withdraw the claim of privilege or other protection or stating the reasons for
the claim. If the Producing Party’s response to the Notice of Clawback Challenge does not resolve
the issue, the Parties shall meet and confer within five (5) business days of the Producing Party’s
response to the Notice of Clawback Challenge. Should the dispute remain unresolved, the
Receiving Party may bring a motion for a determination of whether privilege applies and must do
so within seven (7) business days of its determination that no resolution will be achieved. The
Parties may stipulate to extend or otherwise modify the time periods set forth in this Paragraph.
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9.
The Producing Party shall provide the item(s) listed in a Clawback Notice to the
Court for review in camera with its response to a motion for determination of whether privilege
applies. Should the Receiving Party’s motion contain the content of any item(s) whose claim of
privilege or other protection is being challenged, the motion shall be filed under seal. The
Receiving Party may not assert the facts or circumstances of the disclosure as a ground for
compelling disclosure.
10.
If, during a deposition, a Producing Party claims that a document being used in the
deposition (e.g., marked as an exhibit or shown to the witness) contains material that is subject to
the attorney-client privilege, the attorney work product doctrine or any other privilege or
protection, the Producing Party may (a) allow the document to be used during the deposition
without waiver of any claim of privilege or other protection; or (b) instruct the witness not to
answer questions concerning the parts of the document containing privileged or protected material.
If the Producing Party allows the examination concerning the document to proceed consistent with
this paragraph, all Parties shall sequester all copies of the inadvertently produced document. As
to any testimony subject to a claim of privilege or other protection, the Producing Party shall serve
a Clawback Notice within seven (7) business days of the deposition’s conclusion. In either case,
the Receiving Party may challenge the assertion of privilege or other protection consistent with
the procedures as set forth in Paragraphs 6 and 7 herein. If a Clawback Notice concerning any such
document or testimony upon which a privilege or protection is asserted is not timely served as set
forth in this Paragraph, i.e., more than seven (7) business days after the conclusion of the
deposition, the Receiving Party may challenge that the document or testimony is no longer
protected under Paragraph 2 herein, and that Federal Rule of Evidence 502(b) applies instead.
Paragraph 5 shall apply pending resolution of the privilege dispute as to the relevant document or
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testimony to all Parties with access to the deposition transcript. Should the Court decide the dispute
in the Receiving Party’s favor, i.e., that the document or testimony is not privileged or protected,
and the Receiving Party was denied the opportunity to depose the witness as to the Information
subject to the dispute, the Parties shall work in good faith to make the witness available for
deposition within fourteen (14) days of the Court’s resolution of the dispute, at the expense of the
Party who served the Clawback Notice, i.e., the Party who asserted the claim of privilege or other
protection.
11.
This Order does not override any attorney’s ethical responsibilities to refrain from
examining or disclosing materials that the attorney knows or reasonably should know to be
privileged and to inform the Producing Party that such materials have been produced.
12.
Nothing in this Order precludes a Party from voluntarily or intentionally waiving
any claim of privilege or protection. Should a Party use privileged or otherwise protected
information to support a claim or defense, Federal Rule of Evidence 502(a) shall apply.
III.
PRIVILEGE LOG
13.
Except as set forth otherwise in this Order, any document or ESI that is withheld
on the basis of a claim of attorney-client privilege, attorney work product doctrine, or any other
claim of privilege or immunity is to be identified by the Producing Party on a privilege log, which
shall be produced in an Excel format that permits electronic sorting and searching.
14.
After completing its production of documents or ESI, and with a good faith effort
within sixty (60) days, the Producing Party shall provide a privilege log or logs concerning any
Information that has been redacted or withheld in whole or in part from its production(s). To the
extent any previous designations are subsequently modified or withdrawn, they shall be so noted
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within fifteen (15) days of any decision to modify or withdraw any previous designations in an
amended log to ensure clarity.
15.
Privilege logs shall be detailed enough to enable other Parties to assess the
applicability of the privileges or protection asserted. The privilege log shall set forth the privilege
or protection relied upon and specify separately for each document:
a.
Bates-number range, or if no Bates-number range, a unique document
identifier;
b.
Family relationship, if applicable (e.g., identification of parent emails and
all attachments);
c.
The document title to the extent contained in metadata, including in the case
of emails, the subject line of the email, unless that information is itself
subject to a claim of privilege (in which case that withholding shall be
indicated on the log);
d.
Sufficient factual basis to support the claim of privilege or protection;
e.
The names of the author(s)/sender(s);
f.
The names of all addressees and recipients, including CCs and BCCs;
g.
The document date, which shall be defined as the date sent for
correspondence such as emails, memos and letters and the date last modified
for other documents;
h.
Whether the document has been produced in redacted form or withheld in
its entirety; and
i.
The designation of the privilege or protection relied upon (e.g., attorney-
client privilege or attorney work product).
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16.
Each member of a family of documents (i.e., each member of a set of documents in
parent-child relationship to each other) to the extent such members are also being withheld for the
same privilege, may be logged together as a single entry in the privilege log. In instances where
multiple documents in a family are logged together as a single entry in a privilege log, the privilege
log description shall clearly reflect that the entry relates to more than one document (e.g., “email
attaching memorandum”) and shall provide sufficient information to satisfy Federal Rule of Civil
Procedure 26(b)(5)(A) as to all attachments.
17.
For the avoidance of doubt, each such document shall be logged based on the
metadata (author(s) or sender(s) and recipient(s)) of the individual document, where available.
Email addresses may be included in the log, rather than full names of authors, senders, and
recipients, provided that the email addresses contain sufficient information to identify the
individual.
18.
Partially privileged documents need not be logged so long as the reason for the
redaction is provided on the document (e.g., “Redacted: Attorney-Client Privilege”). Upon
reasonable request, the Producing Party agrees to provide additional information supporting the
claim of privilege if it is not clear from the face of the redacted document within fifteen (15) days.
19.
Materials relating to activities undertaken in compliance with the duty to preserve
information (including, but not limited to, litigation hold letters) which are protected from Federal
Rules of Civil Procedure 26(b)(3)(A) and (B) need not be logged.
20.
Attorneys or their staff must be identified on the log with an asterisk or similar
notation.
21.
When multiple email messages (“thread members”) are part of a single email chain
or thread, a Party is only required to include on a privilege log the most inclusive, i.e., last in time,
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email and need not log earlier, less inclusive email messages that are otherwise fully contained
within the thread, provided that log entry includes the names of the authors, addressees, recipients
(including CCs and BCCs) for all thread members, and that the description of the email chain or
thread include sufficient factual bases sufficient to support the claim of privilege for each email or
thread member a privilege or protection is claimed. The Party claiming a privilege or protection
over an email or thread member shall identify which specific email or thread member within the
email chain or thread the privilege or protection is being asserted. The asserting Party must also
indicate whether the email chain or thread has been produced in redacted form or withheld in its
entirety.
22.
After receipt of a privilege log, any Party may dispute a claim of privilege. Prior
to seeking Court intervention, the Party disputing or objecting to a claim of privilege shall provide
in writing the identification of the documents or category of documents for which the claim of
privilege or protection is being challenged and the reasons for disputing or objecting to the
privilege designation. Within twenty-one (21) days, the Party that designated the documents for
which the privilege or protection is being asserted will provide a written response setting forth the
basis for its claim of privilege or de-designating the challenged documents and producing those
documents in accordance with this Order. If the dispute is not resolved, the Parties shall meet and
confer in good faith as to the claims of privilege or protection. If no agreement has been reached
after 21 days after the meet and confer, the Parties shall submit the dispute by motion to the Court
consistent with the Court, Magistrate Judge, or Special Master’s procedures for raising discovery
disputes.
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Respectfully submitted,
/s/ Laurence M. Rosen
THE ROSEN LAW FIRM, P.A.
Laurence M. Rosen, Esq. (FBN 0182877)
Phillip Kim, Esq.
Robin Howald, Esq.
Erica Stone, Esq.
Michael Cohen, Esq.
275 Madison Avenue, 40th Floor
New York, New York 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
rhowald@rosenlegal.com
estone@rosenlegal.com
mcohen@rosenlegal.com
Counsel for Lead Plaintiff
/s/ Samuel A. Danon
HUNTON ANDREWS KURTH LLP
Samuel A. Danon (FBN 892671)
Gustavo Javier Membiela (FBN 513555)
María Castellanos Alvarado (FBN 116545)
333 S.E. 2 Avenue, Suite 2400 Miami, FL
33131
Telephone: (305) 810-2500
Facsimile: (305) 810-2460
sdanon@huntonak.com
gmembiela@huntonak.com
mcastellanos@hunton.com
CRAVATH, SWAINE & MOORE LLP
Antony L. Ryan
Kevin J. Orsini
Brittany L. Sukiennik
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
aryan@cravath.com
korsini@cravath.com
bsukiennik@cravath.com
Counsel for Defendants Robinhood Markets,
Inc., Robinhood Financial LLC and
Robinhood Securities, LLC
SO ORDERED this ___ day of ____________, 2021.
_________________________________
The Honorable Cecilia M. Altonaga
Chief United States District Judge
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