In City of E. St. Louis v. Monsanto Corp., No. 3:21-cv-00232-DWD (S.D. Ill. Aug. 17, 2022), Illinois District Judge David W. Dugan, finding “Defendants have demonstrated good cause for a Rule 502(d) order”, granted the defendants’ request for a 502(d) order to protect the parties against waiver of privilege, over the objections of the plaintiff.
In this litigation involving Monsanto’s production of polychlorinated biphenyls (“PCBs”) and claims of contamination within the corporate limits of East St. Louis, the defendants, after conferring with the plaintiff regarding a proposed Rule 502(d) order, filed a motion to request that Rule 502(d) order with the Court, arguing good cause existed for a grant of the Motion because their Proposed Order would afford the parties the full protections of Rule 502(d) and, therefore, serve the parties’ best interests.
The plaintiff filed a response contesting defendants’ request for a 502(d) order, suggesting that Defendants provided boilerplate language regarding “good cause” and the “best interests” of the parties but had not otherwise explained why a Rule 502(d) order is necessary. They also argued the parties are “automatically protected” from waivers caused by the inadvertent disclosure of privileged information under Rule 502(b) and that Rule 26(b)(5)(B) also provides a mechanism for resolving disputes related to the inadvertent disclosure of privileged information and that those protections were sufficient in this case.
Regarding Rule 502(d) orders in general, Judge Dugan stated: “subdivision (d) of Rule 502 enables the Court, sua sponte or on a party’s motion, to enter an order that allows the parties to conduct and respond to discovery expeditiously and without the need for exhaustive pre-production privilege reviews.” While also noting: “even after the entry of a Rule 502(d) order, a ‘completely reckless disclosure’ or a disclosure made ‘irrespective of the reasonableness of counsel’s privilege review’ may nevertheless result in waiver, such that a counsel who produces documents without even a reasonable privilege review does so at his or her own risk”, Judge Dugan also stated: “Such orders are “increasingly important” to limiting costs of privilege review and retention, especially in cases of electronic discovery… When entering a Rule 502(d) order, the Court has the authority to include conditions that it deems appropriate under the circumstances presented in the case.”
Regarding defendants’ request for a 502(d) order, Judge Dugan stated: “Here, the Court FINDS Defendants have demonstrated good cause for a Rule 502(d) order that protects each party from the potential undue burden or expense, pertaining to the inadvertent disclosure of communications or information protected by the attorney-client privilege or the work-product privilege, and that specifies the related terms for disclosures in discovery…The Court is persuaded by Defendants’ representation, consistent with the nature of the record and allegations in this case, that discovery involves extensive electronically stored information, millions of pages of documents, and the potential for the inadvertent disclosure of privileged information by each party. Consistent with the above principles, a Rule 502(d) order will ensure expeditious discovery and abate the time and resources expended by the parties during their privilege review and retention. A Rule 502(d) order will also tend to diminish such expenditures if a dispute arises over privileged information disclosed in discovery.”
Judge Dugan then proceeded to outline and order a process involving claims of privileged information being disclosed, including the process to generate a privilege log and clawback such materials, contesting privilege claims and addressing disputes over those privilege claims.
So, what do you think? Do you agree that defendants’ request for a 502(d) order should have been granted? Please share any comments you might have or if you’d like to know more about a particular topic.
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