Hegarty, Michael E., United States Magistrate Judge
v.
CHARTER COMMUNICATIONS, INC., Defendant
Counsel
Alexander Kaplan, Corey Michael Sclar Miller, Jeffrey M. Gould, Scott A. Zebrak, Matthew J. Oppenheim, Oppenheim & Zebrak LLP, Megan Michelle O'Neill, Covington & Burling LLP, Washington, DC, Anders Linderot, Jonathan Michael Sperling, Phillip Aaron Lee Hill, Covington & Burling LLP, New York, NY, John Hardy Ehlers, Mark Y. Chen, Mitchell Aaron Kamin, Neema T. Sahni, Covington & Burling LLP, Los Angeles, CA, Nathan Evans Shafroth, Covington & Burling LLP, San Francisco, CA, Janette L. Ferguson, Williams Weese Pepple & Ferguson PC, Denver, CO, for Plaintiff.Jeffrey M. Gould, Matthew J. Oppenheim, Oppenheim & Zebrak LLP, Washington, DC, for Defendant.
ORDER
Defendant has filed a Motion for Entry of an Order Pursuant to Federal Rule of Evidence
502(d). ECF 283. The genesis of this Motion is Plaintiffs’ Motion to Compel Production of All
Documents Related to Charter’s Spoliation Listed on Charter’s Privilege Log or Otherwise
Withheld on the Basis of Privilege. ECF 262. There are approximately 820 documents on the
Defendant’s privilege log that are sought by Plaintiffs in connection with Plaintiffs’ claim of
spoliation. In the current Motion Defendant proposes to voluntarily produce over 600 of the
allegedly privileged documents, as long as this Court enters an order under Fed. R. Evid. 502(d)
that such production would not act as a waiver in this or any other proceeding. Both sides agree
the Court has to authority to enter such an order. Defendant asserts the Court has such authority
with or without Plaintiffs’ consent; Plaintiffs contend that only with the receiving party’s consent
have courts used Rule 502(d) in this manner.
I agree that entry of the type of order requested by Defendant (whether explicitly under Rule 502(d) or pursuant to the Court’s inherent authority) would promote the interests of Fed. R. Civ. P. 1. I agree with Plaintiffs that the current situation was apparently not contemplated by the drafters of Rule 502(d) nor has it been the subject of any case they or I could find; rather, the Rule was designed to address inadvertent disclosures, and the reported cases analyze it in that context or in the context of a party who intentionally discloses privileged information and then seeks the protection of the Rule as to other privileged but related information. This would be a fairly novel use of the Rule, where a party seeks an advance judicial ruling of nonwaiver.[1] But beyond the bare legal argument that Rule 502(d) was not intended for this purpose (although the language of the Rule itself would permit its use in this manner), Plaintiffs offer nothing material to caution against Defendant’s requested order. I will address each of Plaintiffs’ parade of horribles below.
I. It Is a Ploy
Plaintiffs make this argument in various forms. For example, they accuse Defendant of an
“ongoing strategy to use privilege and work-product protection as both a sword and shield – to
selectively disclose helpful documents while shielding unhelpful ones.” They also argue that a
Rule 502(d) order “raises serious concerns that Charter is trying to hide critical documents bearing
on the document destruction.” I disagree this would be the outcome of a Rule 502(d) order.
Defendant is already “shielding” all 820 documents on their privilege log. Plaintiffs, in a separate
motion, are already seeking all 820 documents. An order permitting disclosure of the 600-odd
documents proposed by Defendant will not moot Plaintiffs’ attempt to seek the rest of the
documents. That issue will still be in play
II. Charter Is Cherry-Picking What Documents to Disclose
Even if this is true, so what? Plaintiffs urge the Court not to “fall for it” concerning
Defendant’s apparent slight-of-hand. That is an unfortunate way to speak of the Court or the
Defendant. Maybe, as Defendant purportedly believes, after Plaintiffs have reviewed the voluntary disclosure, they will buy into Defendant’s argument that any document destruction was
inadvertent, and maybe they will not. In my view, at the least, Defendant’s production will narrow
and refine the arguments that the Court may inevitably entertain. In any event, the Court has
ordered the withheld, attorney opinion documents to be provided in camera.
III. Defendant Has Not Identified its Criteria for Disclosure
This is a fair point. In its Reply, Defendant stated that all documents on the spoliation
privilege list—except those constituting opinion work product—are being produced
IV. Defendant Is Using Rule 502(d) for a Tactical Advantage
Even if Defendant has an undisclosed motive for the process it proposes (and Plaintiffs have
no factual basis for saying so other than the unfortunate animosity that has developed between the
parties in this case), Plaintiffs are not giving up anything. Incidentally, there would have been no
need to have a Rule 502(d) order, or to apply that Rule in this case, if counsel cooperated on
reasonable requests such as the current Motion. The assumption that opposing counsel are trying
to pull a fast one (or that the Court is naively in danger of falling for it) is all too typical an assertion
in the briefing in this case
V. Defendant Has Not Stated It Is Producing All Documents in the Six Categories
This is another fair point. In its Reply, Defendant states plainly that it is proposing to produce
all non-opinion work product documents in the six categories of documents.
VI. Defendant’s Proposal Seeks to Avoid Consequences of its Prior Disclosure
This Order shall not extinguish any argument Plaintiffs have that any prior disclosures not authorized by this Order have resulted in a waiver of privilege.
Finally, there is one telling point Plaintiffs do not make whatsoever. Rule 502(d) states that
its protection of nonwaiver extends to any other federal or state proceeding. Plaintiffs do not address this aspect of the Rule. Likewise, Plaintiffs make no showing that preserving the privilege
as to the documents to be produced under this Order prejudices Plaintiffs.
Therefore, the Motion for Entry of an Order [filed November 4, 2020; ECF 283] is granted to
the extent that Defendant shall produce documents it has previously withheld as privileged, as
requested in the Motion. Such production by itself shall not waive attorney/client or attorney work
product privilege that otherwise applies to the produced documents, in this case or any other federal
or state proceeding. The Court advises Defendant to cast a wide net, and be as aggressive as
possible, in producing such documents from its privilege log. This Order is not intended as a
determination that any documents Defendant produces are in fact privileged. Plaintiffs retain all
arguments that Defendant has inappropriately designated a document as privileged.
SO ORDERED.
Footnotes
Some cases have addressed a situation in which the parties have drafted a protective order
containing a provision protecting intentional disclosure of privileged documents. Again, that is
unlike the current facts.