2021’s Shark Week/eDiscovery Case Week comes to an end with a case involving probably Judge Andrew Peck’s favorite Federal Rule of Evidence!  In Klein, et al. v. Facebook, No.: 20-cv-08570-LHK (N.D. Cal. June 3, 2021), California Magistrate Judge Virginia K. Demarchi resolved several plaintiff disputes with Facebook regarding the terms of an order pursuant to Federal Rule of Evidence 502(d) to govern the treatment of privileged materials disclosed during discovery.

Case Background

In this case involving multiple claims for antitrust violations against Facebook, the Court held a hearing on the matter on May 25, 2021 to discuss plaintiffs’ disputes with Facebook over the 502(d) order, The plaintiff disputes with Facebook were as follows:

Paragraph 1[3]: The parties disputed whether the order should be limited to “inadvertent” productions of privileged material or whether it should encompass any disclosure of privileged material or whether it should encompass any disclosure of privileged material, regardless of the circumstances of that disclosure.

Sections 2 and 5[4]: This dispute concerned the procedures that apply when one party issues a clawback notice for a Protected Document. The plaintiffs argued that a party should be permitted to sequester a document for which a claim of privilege has been made so that the party may challenge the claim. Facebook argued that such document should be returned or destroyed pending resolution of any challenge.

Section 3: This dispute concerned the procedures that apply when a receiving party discovers a document in another party’s production that it reasonably believes is privileged. The parties agreed that a receiving party must give notice within four business days of such discovery, after which the producing party must serve a clawback notice. The parties disputed whether the producing party should have to deadline for service of the clawback notice.

Section 4: This dispute concerned the procedures that apply to Protected Documents used in deposition or hearings. The plaintiffs’ principal concern was that privilege claims should not be permitted to unnecessarily and unfairly disrupt deposition testimony. Facebook’s principal concern was that a party should not be permitted to use a document that has been identified as privileged in a deposition and obtain deposition testimony about it.

Section 6: The plaintiffs proposed two miscellaneous provisions that seek to preserve a party’s ability to make arguments or request relief not foreclosed by the Rule 502(d) order.

Judge’s Ruling

Judge Demarchi addressed the plaintiffs’ disputes with Facebook section by section.

To address the Paragraph 1[3] dispute, Judge Demarchi stated:

“As the parties acknowledge, no appellate court has addressed the permissible scope of an order entered under Rule 502(d). While some district courts have concluded that such an order may only apply to ‘inadvertent’ disclosures of privileged materials, Rule 502(d) itself contains no such express restriction; rather, it provides that ‘[a] federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.’… Accordingly, the order shall include the following Paragraph 1:… This Order provides the maximum protection allowed by Federal Rule of Evidence 502(d) with regard to Protected Documents. Federal Rule of Evidence 502(b) does not apply to any disputes regarding Protected Documents, and instead this Stipulated 502(d) Order governs all disputes regarding Protected Documents produced in this litigation.”

To address the Sections 2 and 5[4] dispute, Judge Demarchi, referencing FRCP Rule 26(b)(5)(B) and noting that “both parties’ positions deviate from what Rule 26(b)(5) provides”, ruled:

“(a) The clawback notice must be as specific as possible in identifying the basis for the privilege claimed, and must include at least the information required by Rule 26(b(5)(A)(ii);

(b) A party receiving a clawback notice must return or destroy the Protected Document;

(c) A party receiving a clawback notice may sequester any notes or other work product that refers to or excerpts the contents of the Protected Document;

(d) In the event of a challenge to a claim of privilege or a dispute about the claim, the producing party will submit the Protected Document for in camera review by the Court if any party requests its submission, or at the Court’s request;

(f) If one party issues clawback notices for more than 100 documents within a seven-day period, the receiving party may have an additional seven days business days to challenge the clawback notice.”

Note: There was no “(e)” in the list.

To address the Section 3 dispute, Judge Demarchi stated:

“The Court agrees with Plaintiffs that the producing party should have a deadline to serve a clawback notice in these circumstances, and will require the producing party to serve a clawback notice within 10 business days of receipt of the Production notice if it wishes to assert a privilege claim with respect to the document at issue.”

To address the Section 4 dispute, Judge Demarchi stated:

“As discussed at the hearing, the Court’s view is that the usual procedures that govern privilege issues arising in deposition should apply to this action. Specifically:

(a) If a party believes a Protected Document is about to be used in a deposition, the party must object on the record, must state the basis for the privilege claim, and must demand that the document be clawed back.

(b) If the Protected Document is capable of redaction to excise privileged material, the party making the privilege claim must promptly make redactions to the document and permit the witness to testify as to the non-privileged material in the document.  This redaction must be accomplished in such a way as to permit the deposition to continue with minimal disruption.

(c) Once alerted to the privilege claim, the party conducting the deposition must avoid eliciting testimony about the portions of the Protected Document that are claimed to be privileged, until any disputes about the privilege claim are resolved.”

To address the Section 6 dispute, Judge Demarchi stated:

“The Court agrees with Facebook that these miscellaneous provisions are unnecessary, and they shall not be included in the Rule 502(d) order.”

So, what do you think?  Are you surprised that there were so many plaintiff disputes with Facebook over the 502(d) order?  Or are you surprised that the parties were even using a 502(d) order?  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, an Affinity partner of eDiscovery Today.  Check out Kelly Twigger’s ACEDS #caseoftheweek post on this case here.

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