In the case In re Diisocyanates Antitrust Litig., No. 18-1001 | MDL No. 2862 (W.D. Pa. Feb. 15, 2024), Pennsylvania District Judge Scott W. Hardy found that an in camera review by a special master was necessary to resolve the parties’ dispute regarding defendant Covestro’s privilege log and privilege designations. Judge Hardy ordered the parties to confer and file a Joint Report by February 29, 2024 proposing one or more neutrals for the Court’s consideration and indicating whether the parties mutually agree to their appointment as a special master to do so.

Case Background

In this multidistrict litigation which involves allegations that the defendants conspired to reduce supply and increase prices for methylene diphenyl diisocyanate (“MDI”) and toluene diisocyanate (“TDI”), Plaintiffs contended that defendant Covestro’s Log deficiently provided vague and conclusory descriptions of 818 separate documents that prevented Plaintiffs from evaluating the privilege claims in the following four categories: (1) documents that facially appear to contain routine business communications rather than legal advice; (2) communications that appear to not involve an attorney at all; (3) communications not prepared in anticipation of litigation; and (4) communications disclosed to third parties.

In response, Defendants contended that Plaintiffs failed to demonstrate that any of the 818 “unique privilege assertions” were improper because Plaintiffs never identified with particularity what their objections are to any specific Log entries and instead asserted categorical challenges and thus fail to make serious efforts to “resolve or narrow the challenge[s]” pursuant to the ESI protocol.

Judge’s Ruling

Judge Hardy stated: “The attorney-client privilege ‘serves laudable purposes and thus is worthy of maximum legal protection’ but nonetheless ‘obstructs the truth-finding process and is to be construed narrowly.’…The burden of proving that the privilege applies is placed on the party asserting the privilege…Once the privilege-invoking party provides facts showing the privilege is applicable, the burden shifts to the party seeking disclosure to set forth facts showing that disclosure will not violate the privilege.”

Continuing, Judge Hardy found that an in camera review by a special master was necessary to resolve the dispute, by stating: “Here, Plaintiffs contend that Defendants failed to provide sufficient detail in the Log to enable them to assess the applicability of the privilege, whereas Defendants contend that despite lengthy conferral efforts Plaintiffs failed to articulate their objections with particularity as to each specific Log entry being challenged. The Court undertook an independent review of Covestro’s Log and reviewed the parties’ conferral efforts documented in the record and concludes that the necessary assessment of these shifting burdens cannot be completed absent an in camera inspection of the underlying documents…Given the volume of documents involved and the current procedural posture of this case, it is the Court’s judgment that appointing a special master pursuant to Federal Rule of Civil Procedure 53 to conduct an in camera inspection of the documents referenced in the Log would be the most just, speedy, inexpensive, and effective means for resolving this dispute.”

So, Judge Hardy ordered the parties to “confer and file a Joint Report by February 29, 2024 proposing one or more neutrals for the Court’s consideration and indicating whether the parties mutually agree to their appointment as a special master to conduct an in camera inspection of the documents referenced in Covestro’s privilege log.”

So, what do you think? Are you surprised that the Court ordered an in camera review by a special master instead of deciding to sample the log and review it himself? Please share any comments you might have or if you’d like to know more about a particular topic.

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