The Federal Rules of Civil Procedure require a party asserting a privilege to “describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). A party’s failure to provide timely notice that it is withholding privileged documents can result in significant consequences, including sanctions and waiving of the privilege. See1993 Advisory Committee Notes to Rule 26.

In practice, each party often compiles a privilege log that contains all the privileged documents withheld. Most of the log entries would provide the type, date, sender and recipients of the documents, along with the nature of the privilege claimed and a brief description of the basis for the privilege. Many times the description produced by a party can be as vague as “Attorney-client communication concerning [a specific subject matter].” If a document contains both privileged and nonprivileged communications, the document may be produced in redacted form, and a separate log entry may be required for each redaction. Because of the high volumes of electronically stored information, particularly emails and electronic documents, it is not uncommon in litigation today to see a privilege log with many thousands of entries.

This practice of withholding and logging privileged documents presents several practical issues. First, compiling the privilege log can be costly and time-consuming. After identifying all the privileged documents and making the relevant redactions, attorneys must draft entries on the privilege log for each privileged document. Technology and nonlegal staff may help to complete information such as date, sender and recipients of the documents, but to identify the basis of the privilege and to provide a description of the document will almost certainly require attorney time.

Second, the party receiving the privilege log may be frustrated by its sheer volume and its vague descriptions. If the receiving party wishes to challenge the assertion of privilege, the privilege log entries may or may not provide sufficient information to do so. Other than the most obvious errors — e.g., inclusion of a third party on attorney-client communications — privilege logs often do not provide sufficient information for the receiving party to challenge the substance of the privilege claimed.

Third, this entire process can certainly frustrate the court. The party receiving the privilege log may have insufficient information to make specific objections to individual documents and may instead opt for categorical challenges, resulting in objections to numerous documents. The volume of the challenged documents alone may prevent the court from reviewing them in camera.

Federal Rule of Evidence 502(d)

Federal Rule of Evidence 502 became effective on Sept. 19, 2008. According to the explanatory notes, the purposes of Rule 502 include: (1) to resolve disputes about the effect of disclosures of privileged information; and (2) to respond to the complaint that litigation costs necessary to protect privilege have become prohibitive.

Specifically, Rule 502(d) states:

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

Thus, the federal court may enter an order stating that disclosure of privileged or protected documents in connection with the federal litigation does not result in a waiver of such protection in the pending case as well as subsequent federal or state proceedings. According to the explanatory notes, “the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party.” In other words, privilege is not waived even if disclosure was intentional.

Using Rule 502(d) To Streamline Privilege Review

In federal litigations, parties may seek a Rule 502(d) order from the court and avail themselves of the “quick-peek” process noted in the explanatory notes. In this process, a party, under the protection of the Rule 502(d) order, would voluntarily disclose privileged documents to the opposing party. The opposing party would be afforded a chance to review and assess the claim of privilege as well as the relevance of the document. Because disclosure of these documents clearly provides both notice and basis of the privilege claimed, no separate log needs to be compiled. The opposing party could challenge the claim of privilege, but would likely do so only if the document is both relevant and the asserted privilege is debatable.

For example, imagine an email from outside counsel to the general counsel of a company, attaching a final draft of a complaint stating, “Attached is the final version of the complaint, which we will file tomorrow subject to your approval.” The general counsel in turn replies, “Go ahead.” Whether such an email and its attachment are protected by attorney-client privilege may be debatable. See, e.g., Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 354, 376 (App. Div. 2010) (“documents do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer”). But it is unlikely that either party would consider this document important to the litigation. Traditionally, however, such a document must be withheld because its production may cause a subject-matter waiver of privilege.

Under the quick-peek process, the party could disclose this document to the opposing side without fear of either a waiver of privilege over this document or a subject-matter waiver. Even if the opposing counsel were to question the assertion of privilege over this email and its attachment, he or she would likely not care enough about this document to seek its production. Following this process, the parties will ultimately distill a fairly limited set of documents over which to litigate the privilege dispute. The court is also relieved of the burden to review voluminous documents and make privilege rulings.

While no published opinions from a New Jersey federal court have referenced Rule 502(d), this quick-peek process has received support from other federal courts. See, e.g., Goldstein v. F.D.I.C., 2013 WL 2257099, at *4 (D.D.C. May 23, 2013) (Rule 502(d) order “would allow the parties to go forward with discovery without waiving any claim of privilege over a particular document … If the parties are able to agree on a 502(d) order, they may submit it for my approval, and no privilege log is necessary.”).

Practical Considerations before Using the Quick-Peek Process

The attorney-client privilege belongs to the client. In re Chevron Corp., 650 F.3d 276, 283 n.8 (3d Cir. 2011). The client thus must approve the process before the attorneys could disclose privileged documents. If a client is reluctant to disclose privileged documents, even if judged to be unimportant, counsel should explain that the process may reduce the cost of privilege review.

Although parties need not reach an agreement to be protected by this rule (see Explanatory Notes), it is well advised to negotiate the language of a proposed protective order and make a joint submission to the court for approval. Counsel should consider a few issues to be included in the order.

First, the proposed order should specifically reference the quick-peek process, thus alerting the court as to the parties’ intentions. This way the court will not be surprised by the process, if a dispute about privilege arises later.

Second, the proposed order should make clear that the quick-peek process is not mandatory, such that parties may choose to withhold a set of privileged documents and not disclose them in the quick-peek process. This is to protect the documents that are truly sensitive, such as communication discussing the litigation strategy of a case. Of course, in such a case these withheld documents should be logged.

Third, the proposed order should include procedural safeguards. For example, the disclosing party may wish to disclose the privileged documents only in the party’s attorney’s office. Parties may also agree that the privileged documents can be reviewed only in hard copies, and cannot be copied or otherwise taken by the opposing counsel.

Fourth, the proposed order should include a mechanism to submit any disputed document to the court for in camerareview. For example, parties could agree that the disclosing party must submit the disputed documents when it files its opposition to the motion to compel.

Finally, it may be advisable to explicitly state in the proposed order that documents disclosed in the quick-peek process need not be logged.¢

Next Week…

Environmental Law