Santee Sioux Nation v. United States Indian Health Service et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SANTEE SIOUX NATION,
Plaintiff,
v.
P. BENJAMIN SMITH, in his official
capacity as Acting Director of the Indian
Health Service, et al.,
Defendants.
No. 8:23-cv-530
AMENDED STIPULATED
CLAWBACK AGREEMENT AND
FEDERAL RULE OF EVIDENCE
502(d) ORDER
The Court hereby orders pursuant to Rule 502(d) of the Federal Rules of Evidence, Rule
26(b) of the Federal Rules of Civil Procedure, and the Court’s inherent authority that the production
of a document, or part of a document, shall not constitute a waiver of any privilege or protection
as to any portion of that document, or as to any undisclosed privileged or protected
communications or information concerning the same subject matter, in this or in any other
proceeding. This Order applies to attorney-client privilege, work-product protection as defined by
Federal Rule of Civil Procedure Rule 26(b), governmental privileges, or any other applicable
privilege. Nothing in this Order shall constitute an admission that any document disclosed in this
litigation is subject to any of the foregoing privileges or protections, or that any party is entitled to
raise or assert such privileges. Additionally, nothing in this Order shall prohibit parties from
withholding from production any document covered by any applicable privilege or other
protection.
The parties intend that this stipulated order shall displace the provisions of Fed. R. Evid.
502(b)(1) and (2). That is, the disclosure of privileged or protected information, as described
above, in this litigation shall not constitute a subject matter waiver of the privilege or protection in
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this or any other federal or state proceeding, regardless of the standard of care or specific steps
taken to prevent disclosure. However, nothing in this Order shall limit a party’s right to conduct a
pre-production review of documents as it deems appropriate.
I. DEFINITIONS
1. “Document,” as used herein, includes all items listed in Fed. R. Civ. P. 34(a)(1)(A)
and (B).
2. “Documents Produced,” as used herein, includes all documents made available for
review or produced in any manner during this litigation.
II. PROCEDURES
The procedures applicable to a claim of privilege on a produced document and the
resolution thereof shall be as follows:
1. If a party discovers a document, or part thereof, produced by another party that is
privileged or otherwise protected, the receiving party shall promptly notify the producing party
and must then return the document or destroy it and certify that it has been destroyed to the
producing party. The receiving party must also promptly identify, sequester, and destroy any notes
taken about the document. Nothing in this Order is intended to shift the burden to identify
privileged and protected documents from the producing party to the receiving party.
2. If the producing party determines that a document produced, or part thereof, is
subject to a privilege or privileges, the producing party shall give the receiving party notice of the
claim of privilege (“privilege notice”).
3. The privilege notice must contain information sufficient to identify the document
including, if applicable, a Bates number as well as identification of the privilege asserted and its
basis.
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4. Upon receiving the privilege notice, if the receiving party agrees with the privilege
assertion made, the receiving party must promptly return the specified document(s) and any copies
or destroy the document(s) and copies and certify to the producing party that the document(s) and
copies have been destroyed. The receiving party must sequester and destroy any notes taken about
the document. If a receiving party disclosed the document or information specified in the notice
before receiving the notice, it must take reasonable steps to retrieve it, and so notify the producing
party of the disclosure and its efforts to retrieve the document or information.
5. Upon receiving the privilege notice, if the receiving party wishes to dispute a
producing party’s privilege notice, the receiving party shall promptly meet and confer with the
producing party. The specified document(s) shall be sequestered immediately upon receiving the
privilege notice and not be used by the receiving party in the litigation (e.g. filed as an exhibit to a
pleading; used in deposition) while the dispute is pending. If the parties are unable to come to an
agreement about the privilege assertions made in the privilege notice, the receiving party may
make a motion under restricted access for a judicial determination of the privilege claim.
6. Pending resolution of the judicial determination, the parties shall both preserve and
refrain from using the challenged information for any purpose and shall not disclose it to any
person other than those required by law to be served with a copy of the motion under restricted
access. The receiving party’s motion challenging the assertion must not publicly disclose the
information claimed to be privileged. Any further briefing by any party shall also not publicly
disclose the information claimed to be privileged if the privilege claim remains unresolved or is
resolved in the producing party’s favor.
7. If a document must be returned or destroyed as determined by the process above,
that document, along with copies and notes about the document, that exist on back-up tapes,
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systems, or similar storage need not be immediately deleted or destroyed, and, instead, such
materials shall be overwritten and destroyed in the normal course of business. Until they are
overwritten in the normal course of business, the receiving party will take reasonable steps to limit
access, if any, to the persons necessary to conduct routine IT and cybersecurity functions.
DATED this 16th day of December, 2025.
________________________________
MICHAEL D. NELSON
United States Magistrate Judge
Dated: December 15, 2025
Respectfully submitted,
s/ Conly J. Schulte
CONLY J. SCHULTE (NE Bar No. 20158)
AIDAN GRAYBILL Pro hac vice
PEEBLES BERGIN SCHULTE &
ROBINSON LLP
945 Front Street
Louisville, CO 80027
(303) 284- 8228
cschulte@ndnlaw.com
agraybill@ndnlaw.com
Attorneys for the Santee Sioux Nation
LESLEY A. WOODS
United States Attorney
District of Nebraska
ERIC SYNOWICKI, #26403
Assistant U.S. Attorney
1620 Dodge Street, Suite 1400
Omaha, NE 68102-1506
402-661-3700
eric.synowicki@usdoj.gov
BRETT A. SHUMATE
Assistant Attorney General
ERIC BECKENHAUER
Assistant Branch Director
s/ James D. Todd Jr.
JAMES D. TODD, JR.
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
Ben Franklin Station
P.O. Box 883
Washington, DC 20044
202-514-3378
james.todd@usdoj.gov
Attorneys for Defendants
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