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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
U.S. NAVY SEALs 1–3, et al.,
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Plaintiffs,
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v.
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Civil Action No. 4:21-cv-01236-O
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LLOYD J. AUSTIN, III, et al.,
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Defendants.
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FED. R. EVID. 502(D) ORDER
Upon consideration of the parties’ joint motion pursuant to Federal Rule of Evidence
502(d) for entry of an order governing the inadvertent production of documents that may be
privileged or protected, it is hereby ORDERED as follows:
I.
NO WAIVER BY DISCLOSURE
1.
The production of a document, or part of a document, shall not constitute a waiver
of any privilege or protection as to any portion of that document, or as to any undisclosed
privileged or protected communications or information concerning the same subject matter, in this
or in any other proceeding. This Order applies to the attorney-client privilege, work-product
protections, and all other protections afforded by Federal Rule of Civil Procedure 26(b) and
governmental privileges including any information or material that has been determined by the
United States Government pursuant to an Executive order, statute, or regulation, to require
protection against unauthorized disclosure for reasons of national security. Nothing in this Order
shall constitute an admission that any document disclosed in this litigation is subject to any of the
foregoing privileges or protections, or that any party is entitled to raise or assert such privileges.
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Additionally, nothing in this Order shall prohibit parties from withholding from production any
document covered by any applicable privilege or other protection.
2.
This Order shall displace the provisions of Fed. R. Evid. 502(b)(1) and (2). That
is, the disclosure of privileged or protected information, as described above, in this litigation shall
not constitute a subject-matter waiver of the privilege or protection in this or any other federal or
state proceeding, regardless of the standard of care or specific steps taken to prevent disclosure.
However, nothing in this Order shall limit a party’s right to conduct a pre-production review of
documents as it deems appropriate.
II.
DEFINITIONS
1.
“Document,” as used herein, includes all items listed in Fed. R. Civ. P. 34(a)(1)(A)
and (B).
2.
“Documents Produced,” as used herein, includes all documents made available for
review or produced in any manner during this litigation.
III.
PROCEDURES
The procedures applicable to a claim of privilege with respect to a produced document and
the resolution thereof shall be as follows:
1.
If a party discovers a document, or part thereof, produced by another party that is
privileged or otherwise protected, the receiving party shall promptly notify the producing party
and then return the document or destroy it and certify that it has been destroyed to the producing
party. Nothing in this Order is intended to shift the burden to identify privileged and protected
documents from the producing party to the receiving party.
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2.
If the producing party determines that a document produced, or part thereof, is
subject to a privilege or privileges, the producing party shall promptly give the receiving party
notice of the claim of privilege (“privilege notice”).
3.
The privilege notice must contain information sufficient to identify the document
including, if applicable, a Bates number as well as an identification of the privilege asserted and
its basis.
4.
Upon receiving the privilege notice, if the receiving party agrees with the privilege
assertion made, the receiving party must promptly return the specified document(s) and any copies
or destroy the document(s) and copies and certify to the producing party that the document(s) and
copies have been destroyed. The receiving party must sequester and destroy any notes taken about
the document. If a receiving party disclosed the document or information specified in the notice
before receiving the notice, it must take reasonable steps to retrieve it, and so notify the producing
party of the disclosure and its efforts to retrieve the document or information.
5.
Upon receiving the privilege notice, if the receiving party wishes to dispute a
producing party’s privilege notice, the receiving party shall promptly meet and confer with the
producing party. The document(s) shall be sequestered – and if applicable securely stored – and
not be used by the receiving party in the litigation (e.g., filed as an exhibit to a pleading or used in
deposition) while the dispute is pending. If the parties are unable to come to an agreement about
the privilege assertions made in the privilege notice, the receiving party may make a sealed motion
for a judicial determination of the privilege claim.
6.
Pending resolution of the judicial determination, the parties shall both preserve and
refrain from using the challenged information for any purpose and shall not disclose it to any
person other than those required by law to be served with a copy of the sealed motion. The
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receiving party’s motion challenging the assertion must not publicly disclose the information
claimed to be privileged. Any further briefing by any party shall also not publicly disclose the
information claimed to be privileged if the privilege claim remains unresolved or is resolved in the
producing party’s favor.
7.
If a document must be returned or destroyed as determined by the process above,
that document, along with copies and notes about the document, that exist on back-up tapes,
systems, or similar storage need not be immediately deleted or destroyed, and, instead, such
materials shall be overwritten and destroyed in the normal course of business. Until they are
overwritten in the normal course of business, the receiving party will take reasonable steps to limit
access, if any, to the persons necessary to conduct routine IT and cybersecurity functions. In the
case of the inadvertent disclosure of information or material that has been determined by the United
States Government pursuant to an Executive order, statute, or regulation, to require protection
against unauthorized disclosure for reasons of national security additional procedures may be
required as specified by the United States Government.
SO ORDERED on this 8th day of July, 2022.
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Reed O’Connor
UNITED STATES DISTRICT JUDGE