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United States v. Burga

United States District Court, N.D. California

December 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCIS BURGA, et al., Defendants.

          ORDER APPOINTING SPECIAL MASTER

          SUSAN VAN KEULEN UNITED STATES MAGISTRATE JUDGE

         As set forth in this Court's August 16, 2019 order (Dkt. 37), the Court has determined that the appointment of a Special Master is appropriate to review the Parties' instant dispute regarding privileged documents. See Fed. R. Civ. P. 53(a)(1); Dkt. 37 at 13. Pursuant to Fed.R.Civ.P. 53(b)(1) and the Court's August 16, 2019 order, all Parties have notice of the Court's intent to appoint a Special Master and have had an opportunity to be heard with respect to such appointment. Accordingly, the Court ORDERS as follows:

         1. The Court appoints Edward W. Swanson (hereinafter “Special Master”) to serve as Special Master for the purpose of reviewing the remaining documents over which Respondents Francis Burga, individually and as the administrator of the estate of her late husband, Margelus Burga, and Russell Mansky (collectively, “Respondents”) assert privilege. The Court has considered the declaration submitted by Mr. Swanson (Dkt. 43) and finds that he does not have a relationship with the parties, attorneys, action, or this Court that would require disqualification under 28 U.S.C. § 455.

         I. DUTIES OF THE SPECIAL MASTER

         2. Except as specifically set forth below, the Special Master will possess the full authority permitted under Fed.R.Civ.P. 53(c) to perform the duties set forth in this order.

         3. The Special Master shall review and resolve all privilege claims made by Respondents and any exceptions asserted by the Government with respect to such claims.

         4. The Special Master shall proceed with all reasonable diligence in accordance with the protocol described in this order and Fed.R.Civ.P. 53(b)(2). The Special Master shall have discretion to set additional procedures as he sees fit.

         II. PROTOCOL

         5. The documents to be reviewed are those that Respondents claim to be privileged in accordance with the rulings and guidelines set forth by this Court in its August 16, 2019 Order (Dkt. 37).

         6. Upon the Special Master's appointment and pursuant to stipulation, the Parties shall provide the Special Master with copies of the pleadings each party filed regarding the Government's challenge to Respondents' assertion of privilege. The Parties shall also provide the Special Master with this Court's August 16, 2019 Order (Dkt. 37).

         7. Respondents bear the burden of establishing their privilege claims. Respondents shall provide the Special Master with: (1) a log identifying the documents they believe to be privileged and the basis for their belief in sufficient detail to permit the Special Master and the Government to assess the privilege claim; and (2) copies of the identified documents for in-camera review by the Special Master. Respondents shall provide the log and the documents in the form(s) specified by the Special Master (e.g., paper or electronic media). Pursuant to stipulation, both the log and the documents must be provided to the Special Master by December 20, 2019.

         8. If the Government disputes any of Respondents' privilege claims or believes that an exception applies, the Special Master shall resolve the dispute. The Special Master shall set deadlines for the Government to object to Respondents' privilege claims and to assert that an exception applies.

         9. The Special Master shall advise the Government of any documents that the Respondents agree are not privileged or that Respondents agree fall within an exception to the applicable privilege.

         10. In resolving disputes about privilege claims or exceptions, the Special Master will communicate with counsel in writing pursuant to stipulation. Counsel will have seven days to respond in writing. The Parties will also make themselves ...


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