On May 10, 2018, Magistrate Judge Katharine H. Parker of the Southern District Court of New York denied the plaintiffs’ motion for a compelled “quick peek” at approximately 3,300 documents on the defendant’s privilege log.
In doing so, the magistrate judge declined to follow Fairholme Funds, Inc. v. United States, No. 13-465 (Ct. Fed. Cl. Oct. 4, 2017) (summarized in the January 2018 edition of the Buckley eDiscovery Newsletter). Under Federal Rule of Evidence 502(d), a “quick peek” allows the parties to produce documents without engaging in a privilege review, but without waiver of privilege or work product protection, as a way to avoid the excessive costs of full privilege review and disclosure when large numbers of documents are involved. The plaintiffs had raised concerns about the defendant’s deliberative process privilege designations, and the court had directed the plaintiffs to identify a subset of 80 documents out of the roughly 3,300 documents listed on that log that had been withheld on the basis of deliberative process privilege. The court also had ruled that the defendant would have an opportunity to re-review the 80 document subset. The defendant re-reviewed the subset and subsequently produced 51 of those 80 documents, leading the court to order the defendant to turn over all 80 documents for in camera review. That review led to a decision ordering the defendant to produce certain documents from the sample set, and the court directed the defendant to re-review all of its privilege designations, after which the defendant de-designated even more documents as privileged and produced them. At a subsequent case management conference, the plaintiffs raised a concern that the defendant still was designating as privileged a large number of documents. Two weeks later, the plaintiffs proposed that the Court allow them a “quick peek” of 3,300 documents that had been withheld on the basis of privilege, citing Fairholm Funds.
"FRE 502(d) “authorizes a court to issue an order protecting privilege—it does not create an exception to the law of privilege or authorize a court to compel disclosure of privileged information."
Judge Parker respectfully disagreed with the court in Fairholm Funds for “a number of reasons.” She noted that FRE 502(d) “authorizes a court to issue an order protecting privilege—it does not create an exception to the law of privilege or authorize a court to compel disclosure of privileged information.” (Judge’s italics). Also, Judge Parker found the Rules Enabling Act (28 U.S.C. § 2072) explicitly prohibits the U.S. Supreme Court from prescribing rules of evidence that abridge, enlarge, or modify any substantive right, including any privilege. Judge Parker further found that FRE 502(d) solely addresses attorney-client and work product privileges; it does not address the deliberative process privilege. Finally, to the extent the court in Fairholme Funds justified its order on the ground that it did not have the time or resources to conduct an in camera review, Judge Parker opined that “it did so in complete disregard of Federal Rule of Civil Procedure 33.” That rule allows for the appointment of a special master, and the Advisory Committee Notes to that rule explicitly contemplate “reviewing discovery documents for privilege.” The court denied the plaintiffs’ motion and proposed the appointment of a recently-retired magistrate judge to conduct an in camera review of the 3,300 documents, pending any conflict-of-interest issues or other suggested candidates by the parties. A special master has been appointed, but the review has been suspended pending a motion for an extension of time. The case is Winfield v. City of New York, No. 15-CV-05236 (S.D.N.Y. May 10, 2018). A copy of the opinion can be found here.
