ORDER as to Michael Avenatti: On January 27, 2020, Nike, Inc. moved for an order
pursuant to Federal Rule of Evidence 502(d), stating that testimony by Nike counsel
at trial would not constitute a waiver of any privilege or protection that Nike
currently enjoys. See Jan. 27, 2020 Nike Ltr. (Dkt. No. 217); Proposed Order (Dkt.
No. 217-1)) Scott Wilson, outside counsel for Nike, is currently testifying at
trial, and other Nike lawyers may be called to testify. Fed. R. Evid. 502(d)
provides that "[a] federal court may order that [a] privilege or protection is not
waived by disclosure connected with... litigation pending before the court - in
which event the disclosure is also not a waiver in any other federal or state
proceeding." Fed.R.Evid. 502(d). Testimony by Nike counsel at trial will not
constitute a waiver of any privilege or protection that Nike currently enjoys. Given
that Wilson will soon be cross-examined, and that it is possible that other Nike
counsel may be subject to cross-examination, there is no practical way for Nike to
attempt to police its privileges and protections and insure that they are not
waived, either intentionally or inadvertently by lawyers who are not authorized to
waive Nike's privileges and protections. Accordingly, Fed. R. Evid. 502(d) is
applicable, and the relief Nike seeks is appropriate. As stated today in open court,
this Order speaks only to testimony by Nike counsel at trial, and does not address
any disclosures made by Nike counsel prior to today's date, or the effect of such
disclosures. See Fed. R. Evid. 502 advisory committee note (a court "may not enter
an order determining the waiver effects of a separate disclosure of the same
information in other proceedings, state or federal"), SO ORDERED. (Signed by Judge
Paul G. Gardephe on 1/30/2020) (lnl) (Entered: 01/30/2020)