Last week, in Klein v. Facebook, Inc., No. 20-cv-08570-LHK (VKD), 2021 U.S. Dist. LEXIS 105516 (N.D. Cal. June 3, 2021) Magistrate Judge Virginia DeMarchi issued an order resolving a dispute between the parties on a Rule 502(d) order, specifically with regards to whether or not a clawback order should only cover documents and data produced inadvertently, or cover all privileged material that is disclosed. The Court noted that Fed. R. Evid. 502(d) does not expressly restrict itself to inadvertent productions, and the commentary to Rule 502(d) states that, "[T]he court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party[.]" Id. at *14. Magistrate DeMarchi concluded that, "The parties may have different views regarding what distinguishes an 'inadvertent' disclosure from an 'intentional' disclosure, but the principal purpose of the proposed order, as the Court understands it, is to provide a mechanism for protecting legitimate claims of privilege without requiring an exhaustive pre- or post-production review of documents disclosed in discovery, and a mechanism for challenging post-production claims of privilege in a way that does not unfairly prejudice a receiving party who may have relied on the purportedly privileged material without knowing or suspecting the producing party's privilege claim." Id. at *15.
In addition to making clear that the order governs all disputes on the production of protected documents, the Court found it necessary to add language to the 502(d) order that made it clear that it covered both documents and accompanying metadata.
The parties also disagreed over how documents and data subject to a clawback request should be treated. Facebook's position was that the materials should be destroyed by the opposing party pending resolution of any disagreement over a clawback request, and Klein argued that the materials could be sequestered and used for such resolution. The Court noted that both parties' proposals were contrary to Fed. R. Civ. P. 26(b), which prohibits the use of privileged documents in resolving a dispute, but does provide for sequestration as an alternative to the destruction of clawed back materials. Judge DeMarchi ordered that clawed back materials be returned or destroyed, but also ruled that notes or other work product concerning the content of the materials could be sequestered. The privileged materials are to be submitted to the Court for in camera review at the request of any party. A party responding to clawback requests made within a single 7 day period for more than 100 documents will receive 7 more days to dispute the requests.
The Court also addressed the possibility of deposition testimony concerning documents objected to as improperly produced privileged material at the deposition itself. The document in question will have to be redacted at the deposition, and any testimony about the challenged provisions taken after the dispute of a clawback request has been resolved. If they are not raised during the deposition, objections to testimony about privileged materials must take place within 10 days of the receipt of the rough draft of a transcript.