In the case In re Google RTB Consumer Privacy Litig., No. 21-cv-02155-YGR (VKD), (N.D. Cal. Aug. 10, 2022), California Magistrate Judge Virginia K. DeMarchi granted the Google Rule 502(d) order request after noting the parties’ track record in handling other discovery disputes gave the Court reason to be doubtful that the Rule 502(d) would be unnecessary.
In this privacy litigation dispute, Google and the plaintiffs found themselves in disagreement as to whether a receiving party may use the contents of a document clawed back as privileged to challenge the privilege asserted by the producing party.
The court was originally asked to address the disagreement on March 29, 2022, when the parties jointly filed a discovery dispute letter, which was later resolved by the court in an order on May 3, 2022. Judge DeMarchi rejected the plaintiffs’ proposed text that would permit them to use the contents of a clawed back document to challenge Google’s claim of privilege and adopted Google’s proposed text that specified that the plaintiffs may not review or use the contents of the clawed back document in making such a challenge. However, the court also rejected Google’s proposed text that would prohibit the plaintiff from presenting the clawed back document to the court for decision on the dispute of privilege because it would be inconsistent with FRCP Rule 26(b)(5)(B).
The court invited both parties to submit a proposed stipulation for entry of an order reflecting the Court’s resolution of their dispute and ordered that in the absence of a Rule 502(d) order, the other provisions of Rule 502 would apply. The parties did not file the proposed stipulated order or any other proposal for entry of a Rule 502(d) order, so the Court did not enter an order under Rule 502(d). However, Google proceeded to asks the Court to enter an order under Rule 502(d) that includes only the terms as to which the parties previously agreed.
Google argued that the Rule 502(d) order was necessary to ensure that document production could continue to be conducted without exhaustive pre-production privilege review and without the need for fact-intensive inquiry about whether a party has satisfied Rule 502(b)’s “reasonable steps” requirements.
The plaintiffs opposed entry of the proposed order on two grounds. First, they argued that it was procedurally improper for Google to move for entry of a Rule 502(d) order at this time. Second, they argued that such an order was unnecessary because “the parties already have the legal tools and resources they need to resolve disputes over privilege waivers as they may arise in this case.”
Addressing the plaintiff’s first objection, Judge DeMarchi stated: “There is nothing procedurally improper about Google’s motion for entry of a Rule 502(d) order. As the Court observed in its May 3, 2022 order, “Rule 502(d) was ‘designed to enable a court to enter an order, whether on motion of one or more parties or on its own motion, that will allow the parties to conduct and respond to discovery expeditiously, without the need for exhaustive pre-production privilege reviews, while still preserving each party’s right to assert the privilege to preclude use in litigation of information disclosed in such discovery.’””
Judge DeMarchi also stated: “On the merits, the Court agrees with Google that entry of a Rule 502(d) order is warranted in this case…While such an order may be unnecessary in cases where privilege disputes are likely to be few and easily addressed, or where the parties have demonstrated the ability to cooperatively resolve disputes without the Court’s intervention, this is not such a case. So far, this case has featured many disputes that are not easily addressed, as well as a lack of cooperation. Perhaps future disputes about inadvertent disclosure of privileged documents will be different, but the parties’ track record in handling other discovery disputes gives the Court reason to be doubtful. Moreover, the parties appear to have conducted their respective document reviews to date with the mutual understanding that the agreed terms of their draft stipulation would apply, including a provision specifying that the requirements of Rule 502(b) would not apply…The Court finds persuasive Google’s argument that it would suffer prejudice if, having conducted a substantial portion of its document review based on that prior understanding, it must now defend against challenges to any clawed back documents by demonstrating compliance with Rule 502(b).”
Because “Google’s proposed Rule 502(d) order includes only the terms on which the parties previously indicated they agreed” and “Plaintiffs do not object to any of these terms”, Judge DeMarchi granted Google’s request for the 502(d) order.
So, what do you think? Are you surprised that the Court granted the Google Rule 502(d) order request, even though the plaintiffs didn’t agree? 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.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.