United States District Court, D. Alaska
GWITCHYAA ZHEE CORPORATION and GWICHYAA ZHEE GWICH'IN TRIBAL GOVERNMENT, Plaintiffs,
CLARENCE ALEXANDER and DACHO ALEXANDER, Defendants/Third-Party Plaintiffs,
DAVID BERNHARDT, Secretary of Interior, in his official capacity, Third-Party Defendant.
Russel Holland United States District Judge
Motion for Evidence Rule 502(d) Order
Clarence Alexander and Demetrie (Dacho) Alexander move for
the entry of an order pursuant to Rule 502(d), Federal Rules
of Evidence. This motion is opposed by plaintiffs
Gwitchyaa Zhee Corporation and Gwichyaa Zhee Gwich'in
Tribal Governmentand by David Bernhardt, the third-party
defendant. Oral argument was not requested and is not
case involves a dispute over the boundaries of Clarence
Alexander's § 14(c)(1) claim. On May 13, 2019, the
deposition of Gary Lawrence was taken. Lawrence is
purportedly the person who created and compiled the 2008 Fort
Yukon Map of Boundaries. At his deposition, Lawrence was
asked about a draft of an affidavit that defendant Dacho
Alexander had prepared for Lawrence to sign in 2011. In
preparation for his deposition, which was originally to be in
May but has now been rescheduled to July, Dacho Alexander
reviewed an email that he sent to attorney Michael
O'Brien to refresh his memory about the events
surrounding the draft affidavit he had prepared for Lawrence.
Defendants are concerned that Dacho Alexander may be asked
about this email at his deposition and seek a Rule 502(d)
order that would permit them to produce a redacted version of
this email without waiving any attorney-client or
work-product privilege. In the alternative, defendants
request that the court view the email and their proposed
redaction in camera prior to allowing them to
produce the redacted email.
502(d) provides that “[a] federal court may 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.” “Such an order
allows the clawing back of an inadvertent production of
privileged material without any risk of waiver even where the
producing party has not conducted any privilege
review.” Venture Corporation Ltd. v. Barrett,
No. 5:13-cv-03384-PSG, 2015 WL 1940230, at *2 (N.D. Cal.
April 29, 2015). That is not what the Alexanders are seeking
to do here. Rather, they are asking the court to allow them
to selectively disclose portions of a document that they
claim is protected by the attorney-client privilege.
this point in time, there is no reason for the Alexanders to
voluntarily disclose the email. They have claimed
attorney-client privilege as to this email (and other related
emails) and no other party has requested that the
Alexanders produce the email.
Alexanders point out, production of documents used to refresh
a witness' memory is governed by Rule 612, Federal Rules
of Evidence. “This rule gives an adverse party certain
options when a witness uses a writing to refresh memory 
before testifying, if the court decides that justice requires
the party to have those options.” FRE 612(a)(2).
is entitled to have the writing produced at the hearing, to
inspect it, to cross-examine the witness about it, and to
introduce in evidence any portion that relates to the
witness's testimony. If the producing party claims that
the writing includes unrelated matter, the court must examine
the writing in camera, delete any unrelated portion, and
order that the rest be delivered to the adverse party.
court cannot presently determine whether any adverse party is
entitled to the options set out in FRE 612(b) because Dacho
Alexander's deposition has not yet been taken. If Dacho
Alexander is asked about the email at his deposition and
should an adverse party request that the email be produced,
then the court will have to consider whether justice requires
that production. At that time the court will take up the
issue of the interplay between FRE 612 and a document sought
to be protected under the attorney-client privilege
doctrine.But, for now, defendants' motion for a
Rule 502(d) order is denied.
Docket No. 122.