This Stipulation and Order Regarding Protected Counsel Communications and Governing Privilege Log Protocol (“Order”) shall apply to certain protected communications between counsel or govern the procedures for withholding documents from discovery based on a recognized claim of privilege or protection of responsive documents that would otherwise be subject to discovery. This Order applies equally to all parties, who for the purposes of below shall be designated in their various roles as either the “Producing Party” or “Receiving Party” (defined below). All deadlines and timeframes in this order that reference “days” are referring to calendar days and not business days.

I. DEFINITIONS

All capitalized terms are defined as in the Protective Order (ECF No. 665) entered in the Action unless otherwise defined below.

A. JCCP 5225: JCCP 5225 shall refer to the actions currently included in JCCP 5225, any other action hereafter added or transferred to JCCP 5225, and all actions later remanded to their respective transferor courts from JCCP 5225.

B. Discovery Material: all items, documents, or other information, regardless of the medium or manner in which it is generated, stored, or maintained, that is subject to discovery.

C. Government Counsel: attorneys, as well as their support staff, supervisors, law clerks, investigators, and any other employees of a government law office or consumer protection agency that represents a Party to the Action, JCCP 5225, or a Related Litigation.

D. Non-Filing Government Counsel: attorneys, as well as their support staff, supervisors, law clerks, investigators, and any other employees of a government law office or consumer protection agency, that were part of the multistate coalition investigating the claims and allegations related to this Action and Related Litigation, and that have not brought suit in this Action or a Related Litigation.

E. Outside Legal Counsel: attorneys, as well as their support staff to whom it is reasonably necessary to disclose the information for this Action or JCCP 5225 (including but not limited to attorneys, paralegals, secretaries, law clerks, and investigators), who are not employees of a Party to this Action, JCCP 5225, or a Related Litigation but are retained to represent a Party to this Action, JCCP 5225, or a Related Litigation or to advise a Party with respect to this Action, JCCP 5225, or a Related Litigation.

F. Privileged Material: Discovery Material to the extent it is protected from discovery based on a claim of attorney-client privilege, work product protection, or any other applicable privilege or claim of protection.

G. Receiving Party: a Party that receives Discovery Material or a description of Discovery Material which is designated as whole or in part as Privileged Material.

H. Related Litigation: litigations listed by caption in Appendix A, or as supplemented.

II. PROTECTED COUNSEL COMMUNICATIONS

Cooperation by and among Plaintiffs’ Outside Legal Counsel, including Government Counsel, and by and among Defendants’ Outside Legal Counsel, is essential for the orderly and expeditious resolution of this Action and JCCP 5225. The communication of information (A) among and between Plaintiffs’ Outside Legal Counsel, including Government Counsel, and (B) among and between Defendants’ Outside Legal Counsel, shall not be deemed a waiver of the attorney-client privilege or the protections afforded for attorney work product. Nothing contained in this provision shall be construed to limit the rights of any party or counsel to assert the attorney-client privilege or attorney work-product doctrine.

III. PRIVILEGE LOG PROTOCOL

To the extent that Discovery Material is withheld from production on the basis of a good faith claim that it contains Privileged Material, the Producing Party shall produce a privilege log as set forth below within 45 days of the date by which the documents would otherwise have been produced if not for the claim of privilege or protection, unless another time is agreed to by the parties. Privilege logs shall be produced on a rolling basis.

A. Exclusions from Logging Documents Reflecting Privileged Communications or Work Product: To the extent that they contain Privileged Material, the following materials presumptively need not be logged on a privilege log:

1. Communications with Counsel, including Government Counsel, expressly regarding this Action, JCCP 5225, or a Related Litigation after date of initial complaint filing;[1] 

2. Communications exclusively between and among any Plaintiffs’ Outside Legal Counsel expressly regarding this Action or JCCP 5225, including prefiling investigations regarding the allegations and claims asserted therein;

3. Communications between and among Government Counsel and Non-Filing Government Counsel, including their Outside Legal Counsel, during the period encompassing the pre-suit investigation that culminated in this matter and Related Litigation regarding their investigations of the allegations and claims asserted in this Action. This exclusion from logging also applies to their pre-suit investigations of other Defendants related to allegations and claims asserted in this Action and Related Litigation, regardless of whether any Government Counsel names the Defendant in a complaint.

4. Work product regarding this Action, JCCP 5225, or a Related Litigation, created by an attorney or at the direction of an attorney, who is part of a Party’s Counsel, including Government Counsel;

5. Communications expressly regarding this Action, JCCP 5225, or a Related Litigation exclusively between a Party and their Outside Legal Counsel or Government Counsel;

6. Communications expressly regarding this Action, JCCP 5225, or a Related Litigation exclusively between and among either a Party’s Outside Legal Counsel or Government Counsel, including their Outside Legal Counsel, and their Experts or professional vendors, and attorney work product created by Experts or professional vendors, except (with respect to Communications between and among a Party’s Outside Legal Counsel or Government Counsel, including their Outside Legal Counsel, and their testifying Experts) to the extent the Communications:

a. relate to compensation for the Expert’s study or testimony;

b. identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed;

c. identify assumptions that the party’s attorney provided and that the expert relied on in forming opinions to be expressed.

Notwithstanding the foregoing, if a Party asserts that communications regarding interactions or communications with any regulator or government agency, if any, are Privileged Material, other than communications included in Section III.A.3, and those subject to the common interest privilege such as those between Plaintiffs’ counsel and State Attorneys General, such communications shall be logged, irrespective of the involvement of counsel, including Outside Legal Counsel who were retained for this Action. Nothing herein prohibits a Party from requesting a privilege log for materials presumptively excepted from logging upon a showing of good cause.

B. Redacted Documents. Any Discovery Material that contains both Privileged Material and non-privileged material must be disclosed with the purportedly privileged portion redacted. The redacted portion shall be indicated on the Discovery Material itself with the appropriate redaction type reflected in the metadata. The Parties will not be required to log privilege redactions.

C. Format. Privilege logs shall be produced in Excel format that allows for text searching, sorting, and organization of data, and shall be produced in a cumulative manner, so that each subsequent privilege log includes all privilege claims from prior logs. No listings, therefore, shall be deleted from the log. If a privilege claim is withdrawn in whole or in part, the listing shall indicate that the claim was withdrawn in whole or in part. The correspondence accompanying each privilege log shall indicate the document production volume(s) and Bates range(s) to which the privilege log applies.

D. Identification of Counsel. The Producing Party shall identify on the privilege log the attorney, legal staff or personnel with an “ATTY” or exclamation mark.

E. Metadata-Plus-Topic Log. For documents withheld on the basis of privilege or work product, the Producing Party shall provide a metadata log containing the below metadata fields (as defined in the ESI Order, ECF 690), a field or column indicating the privilege log volume, a category/topic field for the Privileged Material (see Appendix B), and a column to indicate if an entry was downgraded, modified, or withdrawn (see Section IV, supra). The Producing Party shall review and analyze each document for privilege and will not rely solely on the metadata to make the determination.

1. PRIV LOG ID

2. BEGBATES

3. ENDBATES

4. BEGATTACH

5. ENDATTACH

6. ALLCUSTODIANS

7. PRIV TYPE (e.g., Attorney-Client Privilege, Attorney Work Product, Common Interest)

8. FILENAME

9. EMAILSUBJECT

10. AUTHOR

11. TO/FROM/CC/BCC

12. DATETIMESENT

13. DATETIMERECEIVED

14. DOCDATE

15. DOCUMENT TYPE

16. HASHVALUE

17. ALLFILEPATHS

18. DATELASTMODIFIED

19. THREADID

F. Narrative Log. Alternatively, a Producing Party may elect to produce a narrative privilege log for documents withheld from production, which would contain a description field describing each document and the basis for the privilege assertion, in addition to the metadata fields listed in Section III.E above. Appendix B shall not apply to narrative logs.

G. Listserv or Group Email. To the extent that Listserv or group email addresses are identified on the privilege log, the Producing Party shall work in good faith to identify individuals and/or groups of individuals and/or groups of individuals who make up such Listserv or group email upon request, which may follow the production of the log

H. Families of Discovery Material. If an attachment (parent or child) to a Discovery Material or communication is being withheld, such attachment(s) shall be identified in the privilege log as separate entries. Families of Discovery Material shall be logged together in sequence with the parent document followed by any other withheld documents in the Discovery Material family to the extent multiple family members are privileged. A Producing Party shall not assert that Discovery Material constitutes Privileged Material on the sole basis that it is part of a family containing other Privileged Material or is attached to a communication with Outside Legal Counsel or its In-House Legal Department

I. Lesser Inclusive Emails. A Producing Party need not log lesser inclusive emails within the same email chain so long as the most-inclusive email record is logged.

J. To the extent documents require a log format that differs from the requirements outlined above, the parties will meet and confer in good faith, and endeavor to agree upon an appropriate log format for such documents.

IV. PRIVILEGE CHALLENGE PROTOCOLS

Resolution of disputes regarding claims of privilege shall be in accordance with Section H of the Court’s Standing Order for Discovery in Civil Cases.

A. Challenges to Privilege Claims: Following the receipt of a privilege log or documents that have been redacted for privilege, a Receiving Party may identify, in writing (by PRIV LOG ID or Bates number), the particular documents that it believes require further explanation. The Producing party shall use reasonable efforts to respond to requests within 10 days for challenges totaling 50 documents and under. If the challenge exceeds 50 documents, the Parties will meet and confer regarding a response time frame. The Parties shall meet and confer to try to reach a mutually agreeable solution.

B. Changes to Redactions or Privilege Designations: To the extent that any privilege assertions are downgraded, modified, or withdrawn by the Producing Party as a result of meet and confer in accordance with the process above, the Producing Party shall within 14 days, or within a time frame as agreed to by the Receiving and Producing Parties, produce any such downgrades as production overlays and indicate the same in the production cover letter to be served with a “key” that indexes the privilege identification number with the assigned Bates Number for each downgraded document. In the event any privilege assertion is downgraded, modified, or withdrawn by the Producing Party with respect to documents to be used in an upcoming deposition, the Parties shall meet and confer and the Producing Party shall use reasonable efforts to produce the documents in advance of the deposition.

V. MODIFICATION

This Order may be modified at any time by the Court on its own motion, for good cause shown on motion of a party, or by agreement of the parties with the Court’s approval. Compliance with this Protocol satisfies the Producing Party’s obligations under Federal Rule of Civil Procedure 26(b)(5) to expressly claim a privilege or protection and describe the nature of Privileged Material for other parties to assess the claim.

IT IS SO STIPULATED, through Counsel of Record.
DATED: April 1, 2024

IT IS SO ORDERED that the foregoing Agreement is approved.
DATED: April 2, 2024
Honorable Peter H. Kang
United States Magistrate Judge

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