Filed: Sep. 09, 2014
Latest Update: Sep. 09, 2014
Summary: STIPULATION AND [PROPOSED] ORDER REGARDING WAIVER OF PRIVILEGE RICHARD SEEBORG, District Judge. The parties stipulate and agree, and the Court finds upon a showing of good cause, that by his Petition for Writ of Error Coram Nobis ("Petition"), dated July 30, 2014, the defendant W. Scott Harkonen raises several issues with respect to his prior counsel's representation and that the United States cannot fully respond to these claims without the requested waiver of the attorney-client privil
Summary: STIPULATION AND [PROPOSED] ORDER REGARDING WAIVER OF PRIVILEGE RICHARD SEEBORG, District Judge. The parties stipulate and agree, and the Court finds upon a showing of good cause, that by his Petition for Writ of Error Coram Nobis ("Petition"), dated July 30, 2014, the defendant W. Scott Harkonen raises several issues with respect to his prior counsel's representation and that the United States cannot fully respond to these claims without the requested waiver of the attorney-client privile..
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STIPULATION AND [PROPOSED] ORDER REGARDING WAIVER OF PRIVILEGE
RICHARD SEEBORG, District Judge.
The parties stipulate and agree, and the Court finds upon a showing of good cause, that by his Petition for Writ of Error Coram Nobis ("Petition"), dated July 30, 2014, the defendant W. Scott Harkonen raises several issues with respect to his prior counsel's representation and that the United States cannot fully respond to these claims without the requested waiver of the attorney-client privilege and requested discovery.
The parties further stipulate and agree, and the Court finds, that the defendant has waived the attorney-client privilege in limited part, specifically as to the following areas:
1. The decision to present or not present expert evidence at trial regarding the truthful (i.e., non-false and non-misleading) presentation and interpretation of drug study data and regarding the question of whether the statements in the press release were actually false or misleading, see Petition, at 60-63;
2. Whether presentation of expert evidence at trial would have assisted the defendant's First Amendment defenses, see id. at 63-64;
3. The decision to present or not present expert evidence at trial regarding the materiality or non-materiality of the statements in the press release, see id. at 64-65;
4. Whether expert evidence regarding any of the areas listed above would have acted as circumstantial evidence of the defendant's non-fraudulent mental state, see id. at 65; and
5. The approach, nature, and scope of the cross-examination of the government's expert and other witnesses, see id. at 65-68; see also id. at 29 (quoting Order denying Rule 29 motion).
The parties further stipulate and agree, and the Court so finds, that the United States is entitled to inquire of attorneys Marcus Topel, Lyn Agre, William Goodman, and other attorneys who participated in the trial and defense of this matter ("trial team") regarding the trial team's decisions, thought processes, and opinions with respect to issues 1 through 5 listed above, as well as with respect to any oral communications with the defendant related to those subject areas and, furthermore, any written communications, notes, and materials relating to those subject areas. The trial team is authorized to provide the requested privileged information and materials to the United States, and to file pertinent declarations with the Court concerning the claims raised in the Petition.
The parties further stipulate and agree, and the Court so holds, that the United States is precluded from using the privileged information and materials provided to the United States by the trial team for any purpose other than litigating the defendant's Petition, and that the United States may not disclose these privileged information and materials to any other persons, excluding other representatives of the United States Attorney's Office and United States Department of Justice who are assisting in responding to the defendant's Petition.
Finally, the parties stipulate and agree, and the Court so holds, that notwithstanding the foregoing the defendant reserves his right to object to the admission of any privileged information, documents, or other materials obtained from the trial team that the defendant believes do not fall within the scope of this waiver.
SO STIPULATED.
SO ORDERED.
