In Felder v. Warner Bros. Discovery, Inc., No. 23 Civ. 8487 (AT) (GS) (S.D.N.Y. Dec. 15, 2025), while finding that “Felder has not demonstrated that WBD improperly withheld or redacted any documents”, New York Magistrate Judge Gary Stein instructed Felder to “select up to 20 documents from WBD’s privilege logs for in camera review” “to assess whether WBD has properly implemented the Court’s rulings”.

Case Discussion and Judge’s Ruling

In this case, Plaintiff Felder, challenged the defendant’s redactions and privilege withholdings and sought either compelled production of unredacted materials or, alternatively, in camera review. The dispute arose after Felder filed a letter-motion challenging the defendant’s production under a prior Opinion & Order (O&O) concerning materials from Warner Bros. Discovery’s (WBD’s) internal investigation.

Felder argued that the company had improperly redacted and withheld documents based on claims of attorney-client privilege and work product protection. He requested that Judge Stein order full production or conduct an in camera review. WBD responded that its privilege assertions were proper but stated it was “ready and willing to defend its redactions and withholdings of documents that Plaintiff identifies on the privilege log and to comply with in-camera review, if Judge Stein so desires.” Judge Stein discussed the dispute as centered on four categories of challenged redactions and withholdings.

The first and most significant category involved documents redacted based on the “mental impressions” of non-lawyers. Felder argued these redactions were improper because the authors were not attorneys and therefore could not reflect protected legal theories or attorney mental impressions. He contended that the prior O&O permitted only opinion work product or mental impressions “of an attorney” to be withheld. WBD countered that the earlier ruling recognized that non-lawyer investigators acting at the direction of counsel fell within privilege and work product protections.

Judge Stein rejected both parties’ interpretations of its earlier decision, explaining that the issue had not actually been decided before. The judge wrote that the prior O&O “did not rule in favor of either side on that question, which was not specifically presented in the arguments before Judge Stein.” Rather than rely on the parties’ competing readings, Judge Stein turned to governing law to resolve the issue directly.

Citing FRCP Rule 26(b)(3) and precedent, Judge Stein explained that “‘the work-product doctrine is not limited to documents prepared by an attorney or documents that reflect an attorney’s mental processes.’” He further noted case law holding that “it is of no consequence that most of the subject documents were prepared by non-attorneys,” because the doctrine applies to materials prepared by party representatives, including agents and consultants. Judge Stein also cited authority recognizing that interview notes prepared by non-lawyers “supervised by and acting at the direction of an attorney” can qualify for protection.

Applying those principles, Judge Stein clarified its earlier ruling. He reaffirmed that it had already found the investigation materials were covered by attorney-client privilege and work product doctrine and that the non-lawyer investigators were acting at counsel’s direction. Although the prior O&O found a waiver, that waiver was limited. As Judge Stein reiterated, the waiver extended only to factual materials, while excluding “opinion work product” and “mental impressions or conclusions.” The earlier phrasing that referenced mental impressions “of an attorney” was not meant to strip protection from similar materials prepared by non-lawyers. Judge Stein expressly clarified that such materials remain protected: the exclusion from waiver applies to protected mental impressions “even if prepared by non-lawyers,” so long as the other requirements for work product protection are met.

Regarding Felder’s other three categories of “Redactions Concerning Underlying Statements and/or Facts,” “Redactions of Communications Without Legal Counsel,” and “Documents Withheld Without Any Credible Basis”, Judge Stein stated: “Based on the Court’s review of Felder’s letter, the redacted documents attached thereto…, and WBD’s response, Felder has not demonstrated that WBD improperly withheld or redacted any documents. The Court thus finds no basis to compel WBD at this time to produce any additional documents or to unredact any information. Instead, the Court will conduct an in camera review of a representative sampling of the redacted and/or withheld documents to assess whether WBD has properly implemented the Court’s rulings in the O&O.”

So, Judge Felder ordered that “by no later than Wednesday, December 17, 2025, Felder may select up to 20 documents from WBD’s privilege logs for in camera review and identify them to WBD. By no later than Friday, December 19, 2025, WBD shall provide unredacted versions of those documents to the Court for in camera review.”

So, what do you think? Do you agree instructing Felder to “select up to 20 documents from WBD’s privilege logs for in camera review” provides a large enough sample to determine whether redactions have been properly applied? Please share any comments you might have or if you’d like to know more about a particular topic.

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