Opinion
Master File No. 02 Civ. 3288 (DLC).
March 9, 2005
SKADDEN, ARPS, SLATE, MEAGHER FLOM LLP, Jay B. Kasner, Thomas J. Nolan, Jay S. Berke, Susan L. Saltzstein, Jason D. Russell, Cyrus Amir-Mokri, Steven J. Kolleeny, New York, New York, Attorneys for Certain Underwriter-Related Defendants.
DLA PIPER RUDNICK GRAY, CARY USA LLP, Deborah R. Meshulam, Esq., Washington, DC, Counsel for MCI, Inc.
DAVID N. KELLEY, Nicole Gueron, AUSA, New York, NY. UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK.
STIPULATION AND PROPOSED ORDER
WHEREAS the United States Attorney's Office (the "Government") was served by Certain Underwriter-Related Defendants with a subpoena dated February 27, 2005 (the "Document Subpoena") seeking the production of certain documents in their possession, custody or control relating to WorldCom, Inc. (now known as MCI, Inc.) ("WorldCom");
WHEREAS the Document Subpoena is returnable on March 7, 2005;
WHEREAS the volume of the documents which are the subject of the Document Request No. 1 of the Document Subpoena and which were obtained pursuant to search warrant (the "Subject Documents") is approximately 46 boxes;
WHEREAS the Subject Documents might contain information protected from disclosure by the attorney-client privilege, the work product doctrine or other evidentiary privileges and might also contain confidential information;
WHEREAS counsel for WorldCom has agreed to undertake an expedited review for such information in order to accommodate the request of Certain Underwriter-Related Defendants for rapid production of the Subject Documents at the earliest possible time, which is March 8, 2005;
WHEREAS counsel for WorldCom has also agreed to complete the expedited review by the end of March 8, 2005, provided the protections outlined in this stipulation and order are entered by the Court;
WHEREAS the Government has agreed to produce the Subject Documents on the condition that such production will constitute full and final compliance by the Government with the Document Subpoena;
WHEREAS documents produced in the past by WorldCom have been and are produced pursuant to certain confidentiality agreements and orders, and the January 23, 2004 confidentiality order, attached hereto as Exhibit A, shall apply to the Subject Documents;
WHEREAS the Subject Documents being produced contain substantial quantities of information and documents and will likely result in an inadvertent disclosure of documents, information and/or other materials that are subject to claims of privilege under the attorney-client privilege, work product doctrine or other doctrines or privileges of nondisclosure (collectively, "Privileged Material"); and
WHEREAS for identification purposes this Stipulation and Proposed Order shall be known as the "March 8, 2005 Stipulation";
THE PARTIES HEREBY STIPULATE AND AGREE, AND IT IS SO ORDERED, THAT
(1) The Subject Documents will be made available to Certain Underwriter-Related Defendants for pickup at the United States Attorney's Office beginning March 8, 2005 or the morning of March 9, 2005, upon the completion of their review by counsel for WorldCom in as expedited a fashion as is reasonably possible immediately after the privilege review by counsel to WorldCom is completed on each box;
(2) All WorldCom documents produced by the Government in response to the Document Subpoena are produced pursuant and are subject to the terms of the January 23, 2004, Confidentiality Stipulation and Order entered by this Court in these actions, including paragraph 12, of that order which states in pertinent part:
The Database Discovery Materials WorldCom is producing are substantial quantities of information, documents and other materials in this case that will likely result in an inadvertent disclosure of documents, information and/or other materials that are subject to claims of privilege under the attorney-client privilege, work product doctrine or other doctrines or privileges of nondisclosure (collectively, "Privileged Material"). Promptly upon learning of such inadvertent disclosure, the party or parties or other person learning of the disclosure of Privileged Material must return such Privileged Material and destroy all copies, extracts, summaries or records thereof. This is a continuing obligation and is not subject to any temporal limit. Disclosure of Privileged Material contained in the Database Discovery Materials shall not constitute any waiver of the attorney-client privilege, the work product doctrine or any other applicable privilege or protection with respect to the Privileged Material or the subject matter(s) discussed in the Privileged Material.
(3) The Subject Documents shall be afforded the same treatment and protections as Database Discovery Materials as defined and described in the January 23, 2004 Confidentiality Stipulation and Order;
(4) Anyone obtaining a copy of any Subject Documents and/or who seeks to use any Subject Documents at deposition, at trial or in any other public matter must first contact counsel for WorldCom who (i) shall conduct another privilege review and who shall be entitled to redact any Privileged Material prior to any use of the documents; and (ii) shall determine whether to remove the confidential status of the document as contemplated by the January 23, 2004 Confidentiality Stipulation and Order;
(5) In the event that Counsel for WorldCom redacts Privileged Material from a Subject Document, she shall provide a new copy to the person seeking to use that document and that person shall provide all counsel entitled to obtain the Subject Document with a replacement copy of the document. Counsel must destroy any unredacted copies of the document and advise counsel to WorldCom upon request that they have done so and otherwise complied with the terms of the January 23, 2004 Confidentiality Stipulation and Order;
(6) The Subject Documents shall only be made available to those parties who have endorsed the January 23, 2004, Confidentiality Stipulation and Order and who by their signature on the attached certification agree to be bound by the terms of this Stipulation and Order; and
(7) By making the Subject Documents available to Certain Underwriter-Related Defendants in accordance with the terms described herein, the Government shall have fully and finally complied with the Document Subpoena and shall not be required to produce any additional documents in response to the Document Subpoena.
SO ORDERED.