Opinion
1:20-cr-523 (GHW)
07-28-2021
United States of America v. Medghyne Calonge, Defendant.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Jason P.W. Halperin Erin E. Galliher Counsel for Victim Company. Federal Defenders of New York Martin Cohen Counsel to Defendant.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Jason P.W. Halperin Erin E. Galliher Counsel for Victim Company.
Federal Defenders of New York Martin Cohen Counsel to Defendant.
STIPULATION AND ORDER
GREGORY H. WOODS United States District Judge.
WHEREAS, on or about November 19, 2019, the Government served a subpoena on a third-party provider of an applicant tracking system (“Provider-1”); and
WHEREAS, on or about December 11, 2019, Provider-1 produced records in response to the subpoena, including a document produced in redacted form on the basis of a claim of attorney-client privilege (the “Document”); and
WHEREAS, on or about October 26, 2020, the Government made a production to Defendant that included the Document in redacted form; and
WHEREAS, in preparation for trial, the Government contacted Provider-1 to determine whether it continued to assert privilege over the Document, and on or about July 19, 2021, Provider-1's counsel advised the Government that it did not; and
WHEREAS, the Government reviewed the unredacted version of the Document, which consists of an email chain including an email from counsel for Defendant's former employer (the “Victim Company” or the “Company”) to an individual who was at the time a non-lawyer employee of the Company; and
WHEREAS, the Document was forwarded to Provider-1 by the non-lawyer former employee of the Company, who did not appreciate the possible privilege implications; and
WHEREAS, the Company's counsel was not aware that the non-lawyer former employee had forwarded counsel's email, which represented an attorney-client privileged communication, until on or about July 20, 2021, when the unredacted Document was brought to the Company's counsel's attention by the Government; and
WHEREAS, the Company's counsel continues to assert privilege over the attorney-client communications contained in the Document; and
WHEREAS, the undersigned counsel have met and conferred, and have reached an agreement regarding use and disclosure of this document;
IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned attorneys for Defendant and the Victim Company, as follows:
1. The Government may provide the Document in unredacted form to counsel for Defendant.
2. Production of the document to Defendant and her counsel does not constitute subjectmatter waiver, or waiver in any other form, of any of the privileges or protections held by the Company.
3. Defendant's counsel may make use of the document at trial without limitation, but should Defendant's counsel decide that he wants to file the document on ECF, Defendant's counsel will provide at least three days' notice to the Company and its counsel, who will then have the opportunity to oppose disclosure and filing, including by motion practice before this Court. Until any such disputes are resolved, Defendant's counsel will not file the document in a publicly visible format.
SO STIPULATED.
SO ORDERED.