Stipulation Regarding Preservation and Discovery of Certain Electronically-Stored Information, Draft Documents, And Privileged Materials

MICHAEL E. ANTALICS
mantalics@omm.com
O'Melveny & Myers LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: (202) 383-5343
Facsimile: (202) 383-5414
Attorney for Defendant

WHEREAS, the United States and Microsemi Corporation (collectively, the "Parties") are engaged in litigation in the above-captioned matter;

WHEREAS, the Parties mutually seek to reduce the time, expense and other burdens of discovery of certain electronically-stored information and privileged materials, as described further below, and to better define the scope of their obligations with respect to preserving such information and materials;

The Parties stipulate as follows:

1. Preservation Not Required for Not Reasonably Accessible Electronically-Stored Information.
   1. The Parties agree that except as provided in subparagraph (b) below, the Parties need not preserve the following categories of electronically-stored information for this litigation:
      1. Voicemail messages;
      2. Electronic mail sent to or from a Personal Digital Assistant (e.g., BlackBerry handheld) provided that a copy of such mail is routinely saved elsewhere;
      3. Other electronic data stored on a Personal Digital Assistant, such as calendar or contact data or notes, provided that a copy of such information is routinely saved elsewhere;
      4. Temporary or cache files, including internet history, web browser cache and cookie files, wherever located; and
      5. Server, system or network logs.
   2. Notwithstanding subparagraph (a), if on the date of this stipulation either Party has a policy established by management that results in the routine preservation of any of the categories of information identified in subparagraph (a), such Party shall continue to preserve such information in accordance with its policy. The Parties shall have no obligation, in response to general discovery requests, to search for, produce, or create privilege logs for electronically-stored information covered by this subparagraph (b), but each Party reserves the right to the search and production of such information upon specific request.
2. Obligations Related to "Draft" Documents Generally, Draft Expert Reports and Disclosures, Expert Communications with Counsel, and "Non-Identical" Documents.
   1. The Parties agree for the purposes of this litigation that the obligation to preserve potential evidence extends to draft documents. However, for the purposes of preserving potentially discoverable information in this litigation, and for the purposes of discovery in this litigation, the Parties agree that a "draft" document, regardless of whether it is in an electronic or hard copy form, shall mean, "a version of a document shared by the author with, or viewed by, another person (by email, print, or otherwise)." The Parties agree that they need not preserve for discovery a document before and after every change made to it, so long as "draft" documents, as defined by this paragraph, are preserved.
   2. The Parties agree that drafts of any report or disclosure required under Fed. R. Civ. P. 26(a)(3) need not be preserved, regardless of the form of the draft.
   3. The Parties agree that the following documents need not be preserved, unless otherwise required to be disclosed or produced under Fed. R. Civ. P. 26(a)(2):
      1. Any form of written communication or correspondence between any Party's counsel and its expert(s);
      2. Written communication or correspondence between the expert(s) and their staff; and
      3. Experts' notes.
   4. The Parties agree that they shall preserve any presently existing "non-identical" documents that are relevant to the subject matter involved in this action. A "non-identical" document is one that shows at least one facial change such as the inclusion of highlights, underlining, marginalia, attachments, revisions, or the inclusion of tracked changes, or has a difference in metadata.
   5. Nothing in this agreement shall be construed to limit the discoverability of documents, data, or other information considered by any expert in forming his or her opinions. Moreover, nothing in this agreement shall otherwise modify or eliminate any requirements with respect to experts contained in Fed. R. Civ. P. 26(a)(2) or any applicable Local Rule.
3. Preservation Not Required for Certain Classes of Privileged Documents. The Parties agree that they need not preserve documents falling into the following classes:
1. Documents sent solely between outside counsel for Microsemi;
2. Documents sent solely between outside counsel for Microsemi and Microsemi;
3. Documents authored by Microsemi's counsel, that were not directly or indirectly furnished to any third party, such as internal memoranda;
4. Documents sent solely between counsel of the United States;
5. Documents sent solely between counsel of the United States Department of Justice, Antitrust Division and employees of the United States; and
6. Documents authored by counsel of the United States that were not directly or indirectly furnished to any third party, such as internal memoranda.

The term "counsel" is understood to include counsel's agents, employees, and representatives providing assistance in the provision of legal services.

4. No Discovery of Material Not Required To Be Preserved. The Parties agree not to seek discovery of items that need not be preserved pursuant to paragraphs 1 through 3, above. If any discovery request is susceptible of a construction which calls for the production of items that need not be preserved pursuant to paragraphs 1 through 3, such items need not be provided or identified on a privilege log pursuant to Fed. R. Civ. P. 26(b)(5).
5. Preservation Does Not Affect Discoverability or Claims of Privilege. The Parties agree that by preserving information for the purpose of this litigation, they are not conceding that such material is discoverable, nor are they waiving any claim of privilege. Except as provided in paragraph 4, above, nothing in this stipulation shall alter the obligations of the Parties to provide a privilege log for material withheld under a claim of privilege.
6. Other Preservation Obligations Not Affected. Nothing in this stipulation shall affect any other obligations of the Parties to preserve documents or information for other purposes, such as pursuant to court order, administrative order, statute, or in response to other anticipated litigation.
7. Entire Agreement. This stipulation contains the entire agreement of the Parties relating to the subject matter of this stipulation, and no statement, promise, or inducement made by either Party to this stipulation that is not set forth in this stipulation shall be valid or binding, nor shall it be used in construing the terms of this stipulation.
8. Effective Upon Signing. This stipulation is effective upon execution by the Parties, without regard to filing with the Court, and may be signed in counterparts.
9. Sanctions. No Party shall seek sanctions pursuant to the Federal Rules of Civil Procedure, the contempt powers of the Court, or any other authority against the other Party for the failure to preserve items not required to be preserved pursuant to paragraphs 1 through 3.

LOWELL R. STERN
lowell.stern@usdoj.gov
United States Department of Justice
Antitrust Division
450 5th Street, N.W., Suite 8700
Washington, D.C. 20530
Telephone: (202) 307-0922
Facsimile: (202) 307-6283
Attorney for Plaintiff

MICHAEL E. ANTALICS
mantalics@omm.com
O'Melveny & Myers LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: (202) 383-5343
Facsimile: (202) 383-5414
Attorney for Defendant

The Court has read and considered the Stipulation Regarding Preservation and Discovery of Certain Electronically-Stored Information, Draft Documents, and Privileged Materials, filed on May 22, 2009, ("Stipulation") by the United States of America and Microsemi Corporation.

For the reasons stated in the Stipulation and for good cause shown, the Court hereby APPROVES the Stipulation.

SO ORDERED this ____ day of _______, 2009.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 22nd day of May, 2009, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:

Brett J. Williamson
Darin J. Glasser
O'Melveny & Myers LLP
610 Newport Center Drive, 17th Floor
Newport Beach, CA 92660-6429

Michael E. Antalics
Benjamin G. Bradshaw
O'Melveny & Myers LLP
1625 Eye Street, N.W.
Washington, D.C. 20006