Opinion
CR19-159-RSL
12-29-2021
UNITED STATES OF AMERICA, Plaintiff, v. PAIGE A. THOMPSON, Defendant.
FEDERAL PUBLIC DEFENDER Mohammad Ali Hamoudi Nancy Tenney Christopher Sanders WAYMAKER LLP Brian Klein Melissa Meister Attorneys for Paige Thompson ORRICK, HERRINGTON & SUTCLIFFE LLP Aravind Swaminathan, WSBA #33883 Attorneys for Capital One
FEDERAL PUBLIC DEFENDER Mohammad Ali Hamoudi Nancy Tenney Christopher Sanders WAYMAKER LLP Brian Klein Melissa Meister Attorneys for Paige Thompson
ORRICK, HERRINGTON & SUTCLIFFE LLP Aravind Swaminathan, WSBA #33883 Attorneys for Capital One
STIPULATED MOTION AND [PROPOSED] NON-WAIVER ORDER UNDER FEDERAL RULE OF EVIDENCE 502
ROBERT S. LASNIK, UNITED STATES DISTRICT COURT JUDGE
STIPULATION
Defendant Paige A. Thompson (“Defendant”) and Capital One Bank (USA), NA/Capital One Financial Corp. (“Capital One”) by their undersigned counsel, hereby stipulate to and seek entry of a non-waiver order under Federal Rule of Evidence 502(d), showing the Court as follows:
WHEREAS, Defendant has served a subpoena on Capital One seeking, among other documents and information, a report prepared for Capital One by iDiscovery Solutions (“Report”), (attached as Exhibit A); and
WHEREAS, Capital One considers the Report protected by the attorney client privilege and work product protection because, among other things, iDiscovery Solutions (“iDS”) (1) was retained by Capital One's outside counsel, Debevoise & Plimpton LLP (“Debevoise”), to review the process Capital One used to assess the scope of the 2019 hack, confirm the related conclusions Capital One made about the extent of exposure of certain categories of personal information, and to allow Capital One to adequately comply with state data breach notification laws; (2) conducted its analysis at the direction of and in coordination with Debevoise, who actively participated in and directed iDS's work for the purposes of providing legal advice in anticipation of the litigation expected to follow the 2019 hack; and (3) delivered its Report to Debevoise at the conclusion of its analysis; and
WHEREAS, Capital One and the Defendant stipulate under Federal Rule of Evidence 502(e) that Capital One's disclosure of the Report in this case does not waive any applicable privilege or protection that may apply to the Report or to any other documents and information. See Fed. R. Evid. 502(d) Advisory Committee's note to 2007 amendments (“Subdivision (e) codifies the well-established proposition that parties can enter an agreement to limit the effect of waiver by disclosure between or among them.”); and
WHEREAS, Capital One and the Defendant seek entry of an order, as contemplated by Federal Rule of Evidence 502(d), incorporating their non-waiver stipulation and providing that Capital One's disclosure of the Report in this case shall not effect a waiver of any privileges or protections applicable to the Report or any other documents or information in this case or in any other federal or state proceeding. See Fed. R. Evid. 502(d) (allowing a federal court to “order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court-in which event the disclosure is also not a waiver in any other federal or state proceeding”); and
WHEREAS, Capital One and the Defendant agree that entry of a stipulated non-waiver order will facilitate the resolution of the dispute over the Report and otherwise promote judicial economy.
NOW, THEREFORE, Capital One and the Defendant respectfully request that the Court enter an order incorporating the above non-waiver stipulation as contemplated by Federal Rule of Evidence 502(d). A proposed order is attached for the Court's consideration.
STIPULATED NON-WAIVER ORDER
IT IS HEREBY ORDERED:
1. Pursuant to Federal Rule of Evidence 502(d), neither Capital One's production of the report by iDiscovery Solutions (“Report”) nor its non-assertion of any claim of privilege or protection over the Report in this case is a waiver of any applicable privilege or protection that may apply to the Report or to any other documents and information in (i) this case or (ii) any other federal or state proceeding.
2. Neither this Order nor Capital One's production of the Report shall require Capital One to produce any other documents or information (including testimony) in this case other than the Report at issue.
3. Neither this Order nor Capital One's production of the Report may be used in this case or in any other proceeding to argue that Capital One has waived any privilege or protection over any documents or information.
EXHIBIT A
SUBPOENA TO TESTIFY AT A HEARING OR TRIAL IN A CRIMINAL CASE
Capital One Bank (USA), NA./Capitol One Financial Corp.
To: Attn: 12070-7000 (Subpoena Dept) 15000 Capital One Drive Richmond, VA 23238-1119 c/o Debevoise & Plimpton LLP 919 Third Avenue, NY, NY 10022 via jjpastore@debevoise.com
YOU ARE COMMANDED to appear in the United States district court at the time, date, and place shown below to testify in this criminal case. When you arrive, you must remain at the court until the judge or a court officer allows you to leave.
Place of Appearance: United States District Courthouse 700 Stewart Street Seattle, WA 98101
Courtroom No.: Judge Lasnik, Ct. 15106 Date and Time: March 14, 2022 @ 10:00 a.m.
You must also bring with you the following documents, electronically stored information, or objects (blank if not applicable): SEE ATTACHMENT A
Attachment A
This subpoena seeks production of only the following four documents:
1. iDiscovery Solutions' assessment regarding the scope and impact of the Cyber Incident;
2. Management's Root Cause Analysis;
3. the “Project Star Post-Incident Report;” and
4. Capital One's internal analysis of the personal identifying information (“PII”) impacted in the Incident.