Non-Consensual “Quick Peek” Revisited: FRE 502(d) Cannot Be Used to Compel Production of Potentially Privileged Information Without a Privilege Review

The District Court for the District of Columbia recently confirmed that FRE 502(d) orders cannot be used to force a responding party to produce potentially privileged documents without the opportunity to first review them. In doing so, the court found that such an order would not only violate the producing parties’ right to determine in the first instance how it reviews and produces, but would potentially compel the production of privileged information and thus would constitute “an abuse of discretion.”

In Equal Employment Opportunity Commission v. George Washington University, the EEOC filed a discrimination action on behalf of a former executive assistant against defendant, George Washington University, alleging that defendant’s former athletic director treated the former executive assistant less favorably compared to her male co-worker, a former special assistant. The discovery dispute concerned four requests for production of documents served by plaintiff: three seeking thousands of emails from the work accounts of defendant’s former athletic director and his two assistants; and one seeking information related to workplace complaints against the former athletic director. Defendant argued that plaintiff’s requests were overbroad and unduly burdensome—that is, that compliance with the requests would impose costs that were “not proportional to the needs of the case,” under the proportionality dictates of FRCP 26. By its decision, the court resolved the months-long discovery dispute, finding that the plaintiff’s requests for production were unduly burdensome and overly expensive, and crafted a resolution to “strike[] a balance” to provide plaintiff with a “plethora of relevant emails,” while also keeping defendant’s costs down.

Much of the District Court’s decision concerned the EEOC’s proposed use of FRE 502(d) to require defendant to produce emails without a document-by-document privilege review, with the focus on the burden or expense of the proposed discovery. Defendant provided the court with cost estimates establishing the actual expense of complying with plaintiff’s requests, which averaged $484,200. Plaintiff challenged the necessity and cost of defendant’s procedure, and proposed a less expensive procedure by which defendant’s counsel could use filtering and targeted searches to identify and segregate privileged information. According to plaintiff, if this “less rigorous” procedure resulted in the production of privileged material, plaintiff would permit defendant to use “the clawback provisions of [FRE] 502 to reclaim it.” Essentially, plaintiff wanted the court to enter an FRE 502(d) order, thereby, allowing defendant to “lower its costs by permitting it to produce documents without robust privilege review.”

The District Court rejected plaintiff’s approach, reasoning that FRE 502(d) was not intended to mandate disclosure of privileged material. The court noted that “the text of Rule 502(d) says nothing about the necessity or reasonableness of any particular privilege-review procedure. Rather, it merely allows a court to enter an order that attorney-client privilege or work product protection will not be waived by disclosure of protected information during discovery.” In so holding, the court recognized the so called “quick peek” process, discussed in the Advisory Committee Notes to FRE 502, whereby the parties may consent to production of an unreviewed set of documents after which privileged material may be clawed back. It noted, however, that compelled “quick peek” procedures, in which the producing party does not agree to the process, see Fairholme Funds Inc. v. United States, have been criticized as they deprive the producing party of its right to withhold production of privileged material. The court further stated that if the drafters of the Rule “wanted to encourage courts to prohibit a party from engaging in document-by-document privilege review without that party’s consent, they could have said so more clearly.” As the court observed “courts are ‘not normally in the business of dictating to parties the process they should use when responding to discovery,’ including ‘the manner in which [they] should review documents … for privilege’ and ‘whether [that] document review should be done by humans or with the assistance of computers.’” Ultimately, the court denied plaintiff’s motion to compel a full response to the discovery requests and narrowed the scope of the requests.

This decision is instructive on a number of fronts. It stresses the proportionality concerns of Rule 26 and conducts a detailed analysis of the factors to be considered under this rule. It also emphasizes the right and propriety of producing parties to determine in the first instance “the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information,” as recognized by Sedona Principle 6. Finally, this decision reaffirms that FRE 502(d) orders should not be used to coerce the production of privileged information, but rather as a fail-safe against the inadvertent production of protected information. In short, FRE 502(d) should be used as a “shield” to protect parties from waiving privilege; not a “sword” to force parties to produce privileged information without a robust privilege review.