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Court Denies Plaintiff Request for “Quick Peek” to Privilege Log, Proposing Special Master Review Instead: eDiscovery Case Law

In Winfield v. City of New York, No. 15-cv-05236, (S.D.N.Y. May 10, 2018), New York Magistrate Judge Katherine H. Parker, ruling on a debate of what constitutes privileged ESI,  denied the plaintiff’s request for a “quick peek” at 3,300 documents listed on the defendant’s privilege log, opting to propose instead for a special master to conduct a privilege review of those documents.

Case Background

In June 2017, the defendant moved for return of an accidentally produced privileged document under the agreed-upon procedures set forth in their Clawback Agreement, which then led to further discussion between the parties about the defendant’s privilege designations, with the plaintiffs believing the defendant over-designated documents as privileged.

In July 2017, the court directed the plaintiffs to identify a subset of 80 documents from the defendant’s privilege log that had been withheld on the basis of the deliberative process privilege. The court also ruled that “the defendant would have an opportunity to rereview the 80-document subset identified by Plaintiffs and determine whether it intended to maintain its privilege claim as to each document.”

After this review, the defendant maintained a claim of privilege over only 27 documents and withdrew its privilege designation for 51 document and produced them.  The Court subsequently ordered the City to submit all 80 documents to this Court for in camera review for purposes of assessing the validity of the initial and remaining privilege designations.

The plaintiffs also contested some of the defendant’s refusal to answer at depositions on the basis of attorney-client, work product, and/or deliberative process privilege and submitted a letter to the court seeking privilege rulings on 20 questions to which the City’s witnesses were directed not to respond. The defendant subsequently withdrew its privilege objections six of these questions and provided the plaintiffs with responses.

In February 2018, the court issued a lengthy ruling granting the defendant’s Clawback Demand and granting in part and denying in part the plaintiffs’ motion to compel production of certain documents from the sample set of documents designated as privileged by the defendant on its privilege log. The court also granted in part the plaintiffs’ motion to compel answers to questions posed during depositions. At the same time, the court directed the defendant to re-review its privilege designations, after which, the defendant de-designated certain documents as privileged and produced them.

In April 2018, the plaintiffs raised a concern with the volume (3,300 documents) designated by the defendant as privileged. The court then directed the parties to meet and confer concerning a proposal to address the plaintiffs’ concerns. At that meeting, the plaintiffs proposed the Court order the defendant to turn over all 3,300 documents designated as privileged for a “quick peek” at them, promising to review them in only a few weeks. The defendant, which had already spent significant time reviewing documents for privilege prior to producing them, vigorously objected.

Judge’s Ruling

After taking into consideration FRCP 26 and FRE 502, as well as previous case law, Judge Parker ruled:

“The task of reviewing 3,300 documents is enormous and one that this Court cannot complete before the end of fact discovery on July 31, 2018 given other demands in this and other cases. Appointment of a Special Master to conduct the privilege review pursuant to Rule 53 is therefore warranted…. In accordance with Rule 53(b)(1), the parties may file a letter regarding their position on the appointment of a Special Master, whether they have identified any conflict-of-interest issues… and suggest other candidates for appointment if they so desire…. Given the costs of a Special Master, Plaintiffs are directed to evaluate whether they can narrow the documents for review so as to reduce the time and thus the costs of the review.”

Judge Parker proposed the appointment of the Honorable Frank Maas (Ret.) of JAMS, who recently retired as a Magistrate Judge in the District and was available to conduct a review (and was recently proposed for a privilege review in another high-profile case).  Judge Parker indicated that “the parties may file a letter regarding their position on the appointment of a Special Master, whether they have identified any conflict-of-interest issues that would preclude appointment of Judge Maas, and suggest other candidates for appointment if they so desire.”

So, what do you think? Is the appointment of a special master to perform the privilege review the right ruling? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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