Yesterday on May 10, 2018, Magistrate Judge Katharine Parker issued a decision in Winfield v. City of New York, 15-cv-05236 (LTS) (KHP) 2018 U.S. Dist. LEXIS 79281 (S.D.N.Y. May 10, 2018) denying the plaintiffs' motion for a quick peek at 3,300 documents on the defendant's privilege log. This is the same case discussed in the Tip of the Night for November 28, 2017 which described a decision denying the plaintiffs' motion for the disclosure of information on the plaintiff's TAR system.
The court had previously ordered the City to review a sample set of 80 privileged documents, after which it decided that only 27 of the 80 should still be considered privileged. In her decision, Judge Parker quotes The Sedona Conference Commentary on Protection of Privileged ESI which states that, "Rule 502(d) does not authorize a court to require parties to engage in 'quick peek' and 'make available' productions and should not be used directly or indirectly to do so." Id. at 12. She disagreed with the decision of the United States Court of Federal Claims in Fairholme Funds, Inc. v. United States, 134 Fed. Cl. 680 (2017). in which the court ordered privileged documents to be turned over to the opposing party for a 'quick peek'. Fairholme concluded that the court had the authority to issue a mandatory quick peek order. Judge Parker noted that FRCP 26(b)(1) limits discoverable information to nonprivileged information. Privileged information can only be discoverable if there is a waiver, a voluntary disclosure, or an exception. Federal Rule of Evidence 502 authorizes a court to protect privilege, but does not abrogate common law privileges. "[T[he court is precluded from interpreting the Federal Rules of Civil Procedure and the Federal Rules of Evidence in a manner that infringes on a substantive right, including privilege rights, as such rules may not by statute abridge substantive rights." Id. at 18.
Judge Parker also criticized the court in Fairholme for justifying the quick peek order on the basis of its own lack of time and resources to review the documents in camera. She noted that FRCP 53 allows for the appointment of a special master, and the Advisory Committee Notes for this rule specify that the special master can review documents for privilege.
Judge Parker also distinguished this case from Summerville v. Moran, No. 14-cv-02099 (WTL) (TAB), 2016 WL 233627 (S.D. Ind. Jan.20, 2016), in which a quick peek was ordered where a privilege log was inadequate, and only a small portion of the privileged documents were to be disclosed for the quick peek.
Judge Parker ordered the appointment of Frank Maas of JAMS, a former magistrate judge, as a special master to review the privileged documents, and instructed the plaintiffs to try to narrow the number of documents to be reviewed.