Court Allows ‘Quick Peek’ of ‘Privileged’ Government Documents

Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017).

In this eminent domain case, the court granted the plaintiffs’ motion to compel a “quick peek” at approximately 1,500 documents that the government had withheld as privileged. While the government objected, the court reasoned that allowing the quick peek would expedite the case’s resolution and avoid its own in-camera review.

This case began in 2013 with an allegation that the government took the plaintiffs’ private property without just compensation. Discovery began in April 2014 and is not yet complete.

By way of background, the court pointed out that the plaintiffs had recently identified 38 documents they believed the government improperly withheld as privileged. Upon review, the government agreed to produce 22 of those documents as not privileged. In response, the plaintiffs proposed that the parties use the “quick peek” procedure under Federal Rule of Evidence (FRE) 502(d) to review 1,500 additional documents that the government had withheld as privileged. The government refused.

The plaintiffs argued that “the quick peek procedure is the only way to ensure that they receive all of the documents” they are entitled to in discovery.

In opposing the request, the government argued that it did not consent to a quick peek. Further, its “comprehensive review” had already resulted in its privilege assertions. The government also pointed to a note published by The Sedona Conference, stating that FRE “502(d) does not authorize a court to require” a quick peek. Finally, the government claimed that the plaintiffs could obtain “substantively similar information” to what’s in the withheld documents from other sources.

To start, the court found “troubling” that the government abandoned its privilege assertions so readily after a second review. Furthermore, the court highlighted “the inherent difficulty” of having the government screen discovery in this matter. The court also noted that it had already entered a protective order including a clawback provision under FRE 502(d).

The court next reviewed the twofold purpose of FRE 502. First, the rule seeks to resolve disputes about the waiver of privilege following the disclosure of privileged materials. Second, it intends to control costs where privilege review would be prohibitively expensive. While neither purpose applied directly, the court noted that FRE 502(d) would allow the court to order a “quick peek” and to ensure that the government did not waive its privilege.

The court then pointed out the “axiomatic” fact that it has “broad discretion to fashion discovery orders” in its cases. Additionally, the court observed that if it denied the quick peek, the plaintiffs would likely seek an in-camera review. Therefore, the “more viable and attractive option” was the quick peek. Additionally, under the protective order, only authorized individuals could take a “quick peek” at the documents.

Finally, the court found The Sedona Conference’s position unpersuasive. Rather, it concluded that the quick peek was “eminently appropriate” given its discretion to manage discovery and protective orders.

The court was careful to state that it did not find that the government had failed to satisfy its discovery obligations. However, even the government conceded that its “production of documents … has been piecemeal” in this case.

Therefore, “to facilitate the speedy and efficient conclusion of jurisdictional discovery,” the court granted the plaintiffs’ motion, ordering a “quick peek” for the disputed 1,500 documents. The court again clarified that this was “not intended as a sanction … but rather as a means of expediting the completion of jurisdictional discovery … and conserving the court’s limited resources.”

Takeaways on disclosure of privileged materials

Be sure to have an FRE 502(d) order in every case. Magistrate Judge Andrew Peck has gone so far as to opine that not having one is malpractice. Additionally, be diligent in your motions practice, as the plaintiffs were here. Point out to the court that letting you do the work is “more viable and attractive” than making the court do it.

Questions about meeting document review obligations? We’re here to help you achieve ediscovery compliance.

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