For nearly a decade, Federal Rule of Evidence 502(d) has provided a straightforward procedure for litigants to safeguard privileged information against waiver by inadvertent disclosure. Properly drafted Rule 502(d) orders eliminate the need for a party claiming the privilege to show that a disclosure of information protected by the lawyer-client privilege or work product doctrine was “inadvertent” as a matter of law. Instead, the party simply demands that adversaries return or destroy the mistakenly produced materials.

Despite the straightforward nature of this procedure, some courts have placed additional burdens on litigants to obtain Rule 502(d)'s protections. Other courts have misused Rule 502(d) to force preserving parties into so-called “quick peek” arrangements. Left unabated, these trends could weaken the rule's provisions, which were enacted to reduce the expense, hassle, and risk of litigating over inadvertent disclosures of privileged ESI.

Fortunately, a recent opinion from Winfield v. City of New York rebuffs some of these misguided attempts to dilute Rule 502(d)'s provisions. In Winfield, U.S. Magistrate Judge Katharine Parker articulates the proper purposes of Rule 502(d) while rejecting plaintiffs' “quick peek” proposal.

Winfield v. City of New York

In Winfield, the defendant City of New York had withheld 3,300 documents from production on the basis of the lawyer-client privilege, the work product doctrine, and the deliberative process privilege. Plaintiffs, however, felt that many of those documents were not privileged. Plaintiffs' concerns were not without merit; the city had withdrawn privilege claims over many documents in response to plaintiffs' meet and confer efforts.

Unsatisfied with the city's attempts to reevaluate its privilege designations, plaintiffs requested the court to order a “quick peek” arrangement. Under this procedure, plaintiffs would review defendant's 3,300 documents to determine whether any claimed privileges over those documents should be withdrawn. Not surprisingly, the city “vigorously” opposed this request, arguing that it would be tantamount to a blanket production of privileged information.

Plaintiffs' Reliance on Fairholme Funds v. United States

In support of their motion, the Winfield plaintiffs cited Fairholme Funds v. United States, a 2017 opinion from the Federal Court of Claims. In Fairholme, the court imposed a “quick peek” procedure pursuant to Rule 502(d) over defendant's objections. The court did so to address plaintiff's concern that defendant over-designated certain documents as privileged under the deliberative process and bank examination privileges. The Fairholme court reasoned that expediency, i.e., the need to “facilitate [a] speedy and efficient conclusion,” trumped defendant's privilege claims.

Arguing the present scenario was indistinguishable from Fairholme, the Winfield plaintiffs asserted that the court should order the “quick peek” arrangement because it would be “fast and efficient.” The court, however, rejected this argument while criticizing the Fairholme holding and rationale.

Judge Parker Rejects Fairholme Funds

Judge Parker found that Fairholme was inapposite for four reasons. First, the Fairholme order contravened the plain language of Federal Rule of Civil Procedure 26(b)(1), which proscribes the discovery of privileged information “absent a waiver, voluntary disclosure, or other legally recognized exception.” By ordering a “quick peek” procedure without a finding a waiver or other applicable exception, Fairholme violated FRCP 26(b)(1).

Second, Fairholme incorrectly reasoned that it could issue a “quick peek” order pursuant to Rule 502(d). As Judge Parker observed, Rule 502(d) orders may only issue to safeguard privilege claims and not to vitiate them. Third, Fairholme improperly applied Rule 502(d) to the bank examination and deliberative process privileges. Such a ruling disregarded the plain language of the rule, which limits its application to information protected by the lawyer-client privilege or the work product doctrine.

Judge Parker finished her analysis by determining that Fairholme improperly justified its “quick peek” order on grounds of expediency. If the Fairholme court did not have the resources available to conduct an in camera review of the documents whose claims were challenged, it could appoint a special master pursuant to FRCP 53. By so doing, the court could satisfy the need for expediency without forcing a party to yield its right to protect the privilege.

After finding Fairholme inapposite and rejecting plaintiffs' other arguments, Judge Parker recommended that a special master be appointed to address the parties' disputes over the city's privilege claims.

E-Discovery Lessons from Winfield

This decision from the Winfield litigation is particularly important for protecting privilege claims in discovery. After Fairholme, there was concern that Rule 502(d) could be used as a sword to destroy meritorious privilege claims for expediency's sake. By unequivocally rejecting Fairholme, Winfield reaffirmed the notion that Rule 502(d) provides a reliable procedure for safeguarding privilege claims. In addition, Winfield can now function as a bulwark against future attempts to compel “quick peek” arrangements over the objections of the preserving party.

Winfield also signals the rise of Judge Parker as an emerging colossus on electronic discovery issues. Noted e-discovery expert Ralph Losey of Jackson Lewis recognized as much last year after Judge Parker issued a different order in Winfield addressing the adequacy of the city's technology-assisted review (TAR) process. Judge Parker has now authored several well-reasoned opinions in Winfield, a case whose discovery issues have been as varied as they have been complex. Given the recent spate of retirements among several pioneering jurists in the field of e-discovery, the ascent of Judge Parker (along with other jurists) bodes well for the future development of discovery jurisprudence.

 

Philip Favro is a consultant for Driven, Inc. where he advises organizations and their counsel on issues relating to the discovery process and information governance.