eDiscovery Daily Blog

Does this Ring a Bell? Court Orders Plaintiff’s Quick Peek Over Defendant’s Objections: eDiscovery Case Law

In Fairholme Funds, Inc. v. United States, No. 13-456C, (Fed. Cl. Oct. 23, 2017), Judge Margaret M. Sweeney, despite the defendant’s strong objection, granted the plaintiffs’ motion to compel a “quick peek” production of approximately 1,500 documents withheld as privileged pursuant to the bank authorization and deliberative process privileges.

Case Background

In this case where the plaintiffs sought just compensation under the Fifth Amendment, contending that the defendant engaged in taking their property without just compensation, the defendant produced additional documents multiple times during the course of discovery when challenged.  After their most recent status report filed on June 30, the parties indicated that defendant produced an additional 3,500 documents in response to the court’s March 7 order, and as a result of that production, plaintiffs identified thirty-eight documents they contended should not be withheld for privilege.

Following its review of the thirty-eight documents, the defendant produced an additional twenty-two documents.  In response to the release of these additional documents, plaintiffs proposed that the parties use the quick peek procedure authorized by FRE 502(d).  In response, the defendant objected, quoting a note published by The Sedona Conference (in its Commentary on Protection of Privileged ESI covered by us here), as follows:

“[FRE] 502(d) does not authorize a court to require parties to engage in ‘quick peek’ … productions and should not be used directly or indirectly to do so. … Rule 502 was designed to protect producing parties, not to be used as a weapon impeding a producing parties’ right to protect privileged material. Compelled disclosure of privileged information, even with a right to later claw back the information, forces a producing party to ring a bell that cannot be un-rung.”

After the defendant did not agree to the use of the procedure, the plaintiffs filed a motion to compel.

Judge’s Ruling

Judge Sweeney began with an analysis of [FRE] 502(d) and noted that the “general purpose” of the rule was to resolve longstanding disputes regarding inadvertent production and subject matter waiver and to address complaints about the cost of protecting privileged materials, which she noted were “two issues not relevant to the current dispute.”  Judge Sweeney also indicated (as the plaintiffs pointed out in their argument) that the advisory committee note to [FRE] 502(d) specifically stated that “a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation”.

As a result, Judge Sweeney, noting the defendant’s “piecemeal” production and the desire to “facilitate the speedy and efficient conclusion of jurisdictional discovery”, granted the plaintiffs’ motion, partially because she had “every reason to believe” that the plaintiffs would seek in camera review of the documents.  Judge Sweeney stated: “Given the court’s heavy caseload and limited resources, the use of the quick peek procedure is a much more viable and attractive option. Not only will the court not have to expend its time and resources on a task that should be performed by the parties, but both parties will benefit from the prompt (or at least more prompt) resolution of outstanding discovery disputes. Thus, even though defendant has already reviewed the subject material multiple times, plaintiffs will continue to seek production of these materials, which will, in turn, continue to place a burden on the court—one which could be alleviated through the parties’ use of the quick peek procedure.”

So, what do you think?  Was the court wrong in going against The Sedona Conference recommendations?  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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