#CaseoftheWeek Episode 54: Privilege and Requests for In-Camera Review

In episode 54, CEO Kelly Twigger discusses the value of requesting in camera review where questions of privilege are implicated in redacted documents. The case being analyzed is Orthopaedic Hosp. v. DJO Global and was presided over by United States Magistrate Judge Allison H. Goddard.

Good morning, and welcome to our #CaseoftheWeek for January 25th, 2022. My name is Kelly Twigger, I am the principal at ESI Attorneys and the founder of eDiscovery Assistant. I am so happy to be here with you today. Thanks so much for joining me.

Today’s decision is one that’s going to address some issues that we see on a regular basis, claiming of privilege and the potential under Rule 37 for sanctions for claiming privilege where it is not appropriate. That’s going to be kind of a key issue for us in a lot of ways going forward and in this particular decision, it implicates some litigation materials from a prior litigation that involved the plaintiff in this case. It’s something that we’ve seen come up a number of times with our clients in litigation and something that makes a really good practical takeaway for us for today.

This week’s decision comes to us from a case that has multiple decisions in our eDiscovery Assistant database. There have been a number of discovery disputes in this case. The case is titled Orthopedic Hospital versus DJO Global. This particular decision is from August 23^rd of 2021 but as I mentioned, it really highlights these issues of not only in-camera review, but improper designation of privileged information and the potential of Rule 37 sanctions for those designations. It’s a really important practical takeaway because we’re dealing with privilege issues all the time and trying to protect our clients. The question becomes, do you legitimately have a basis for claiming privilege in those materials?

There’s a bit of procedural history in this case, and that’s documented in the additional decisions that are in eDiscovery Assistant. On the left-hand side, as you’re looking at this particular link on the decision, you’ll see those additional decisions. At the moment, we’re really before the Court on a motion to compel documents from another litigation in which the plaintiff was a party. This is a motion to compel and for sanctions; it really relates back to an order from July of 2021 in which the Court issued an order granting in part and deferring in part the defendant’s motion to propel and for sanctions.

The July order really concerned what I mentioned: the defendant was trying to get materials from a prior litigation involving the plaintiff and the patents that are also at issue in this lawsuit. The Court at the time in July, granted in part and denied the motion in part. Subsequent to that, the plaintiff provided a supplemental privilege law along with some redacted documents. The defendant reviewed that supplemental privilege log following the July order and found it to be insufficient. Essentially, it said that there were descriptions on the privileged log that didn’t allow them to verify the claims of privilege and that the log also failed to account for numerous withheld and redacted documents.

Now, there’s nothing mentioned about this in the decision. I don’t know how old the case was, but a lot of times, these documents remain on pace or remain available for quite a long time. The defendant’s ability to see what’s available on the docket and yet what’s actually being produced is going to be pretty consistent. Plus, it seems like just given that they know about the litigation and there’s some overlap that there is some relationship there that they know there’s information in that litigation that they want to be able to use in this one. They’re arguing for it pretty early on in the case. The Court notes later in the decision that the defendants have been asking for this information since 2019, and the plantiffs and the defendant had gone back and forth and back and forth multiple times discussing this information prior to the July 2021 order.

After the defendant objected to the insufficient descriptions, the plaintiff produced an additional log that also did not satisfy the defendants. Then they had a meet and confer that was unsuccessful and led the defendants renewing this motion to compel them for sanctions, claiming that the documents that plaintiffs did produce, because they produced some information that was redacted and some information included on a privilege log, “strongly suggest that plaintiffs withholding of documents is less than innocent.”

On this new motion, the defendants asked for three different things —1) they asked for in-camera review by the Court of the litigation documents that the plaintiff had withheld and redacted, 2) to compel the plaintiff to produce all nonprivileged documents related to one specific RFP, and 3) to impose fees shifting, (say that five times fast), fee shifting sanctions on plaintiffs.

We know that on a motion to compel, you can typically get cost, but in this particular instance, the defendants are asking for more than that. They’re asking for cost shifting directed to the plaintiffs as a result of these numerous discovery violations that they’ve had to go through regarding these litigation materials.

The Court then granted the request for in-camera review at the time that was back in the fall, and before the decision before us today is the Court’s ruling following that in-camera review. Following the July order, the Court granted the in-camera review. The Court then reviewed the documents and issued this decision in August. The documents at issue include deposition transcripts that were redacted, some of which were withheld in their entirety, as well as discovery responses. These are, again, all materials in prior litigation that the plaintiff was a party to, that the defendants are now seeking to use in a subsequent litigation.

The Court goes through a detailed discussion of each of the items that are at issue here, and we’re not going to cover each of those. What I’ll tell you is that the Court looked at very specific lines of deposition testimony, individual discovery responses, and entire transcripts, and they go through the privilege analysis for each of those items. That’s important because whether something is attorney client privilege is a fairly cut and dried analysis until you get into specific exceptions and things or agency or other issues like that. Here the Court really issues some sound pretty denials of privilege on some of the items that are redacted. Of the items, there are three deposition transcripts and multiple lines of testimony on those deposition transcripts that are challenged by defendants. The Court reviews each one individually and rules on them individually in this decision. Again, it’s a cut and dried analysis and the Court really summarily denies a number of the privileged assertions that are made by the plaintiff regarding this deposition testimony from the previous litigation.

After looking at each of the individual pieces of testimony in the case and also the request for production responses, the Court really looks at whether or not Rule 37 sanctions or fee shifting are appropriate based on a couple of things—based on whether the plaintiffs alleged inadequate privilege log, whether they improperly withheld documents as non-responsive, or if they claimed attorney client privilege to redact essentially non privileged information in the litigation materials. This is a pretty significant issue. You’re talking about are Rule 37 sanctions available for misallocation or mis assignment of privilege to information that is not, in fact, privilege.

Here in this particular situation, there’s an additional factor, and that is that the Court really notes, as I mentioned earlier, that these negotiations for these litigation materials have been going on for more than two years. The Court also finds that the plaintiff continued to stick to its position on privileged information in these materials, despite the defendant pointing out that it was really a baseless claim for privilege at one point in the litigation that the Court found to be very compelling. Then the Court issues this quote that I think is really important to the analysis of this Rule 37.

On this point, it seems that plaintiff believed its only obligation pursuant to the December 22nd order was to log the redactions and include descriptions allowing defendant to verify its claims of privilege, never mind if the descriptions were accurate or if the redacted portions of the documents were actually privileged. If so, that belief would be based on an unreasonable reading of the December 22nd order. Additionally, plaintiff has discovery obligations independent of the instructions set forth in the Court’s order, and an improper claim of privilege is sanctionable with or without an underlying court order requiring a party to supplement and review its privilege log and, if appropriate, revised its redactions. Therefore, the Court is inclined to grant defendants motion for Rule 37 sanctions, at least in part.

There you’ve got the Court saying, yes, if you improperly mark information as privilege, that’s sanctionable, and that’s sanctionable whether you have a court order that you’re violating or not, and that’s really important. We’ve talked before about Rule 37(b) versus Rule 37(e), if you’ve got a violation of a court order, you’ve got sanctionable conduct, but you don’t have to meet the intent bar of Rule 37(e) on failure to preserve. This is really important here in terms of this, because we see a lot of attempts to try and hide information as privileged. We’ve talked previously on the #CaseoftheWeek about the inadequacy of privilege logs these days to be able to really determine whether or not the other side is, in fact, trying to hide information varying on a privileged log.

Moving on with this decision, the Court found that they can’t really rule on the cost shifting analysis without letting the plaintiff weigh in, so they ordered supplemental briefing on that issue, as well as the sanctions, and required plaintiff to address whether it’s redactions of non-privileged information were substantially justified to make an award of expenses unjust. We don’t have a decision yet on what sanctions may be available here, but it’s something that we’ll follow on the #CaseoftheWeek and see if there’s a subsequent decision ordering any sanctions based on this conduct.

Our takeaways we’ve talked about some already. The misuse of privileged designations can be sanctionable conduct, particularly in light of a court order. As the Court specifically states here, you don’t need a court order for it to be sanctionable conduct. We talk a lot about the sanctions and the availability of them under Rule 37 and remember that distinction that I just mentioned between Rule 37(b), where you’ve got a violation of a court order, and Rule 37(e), where you’ve got failure to preserve ESI. Rule 37(e) has that higher bar of the intent that you don’t have under Rule 37(b), but again, the Court says here you don’t need to have a court order in order to get sanctions for misuse of privilege under Rule 37.

Know and understand your implications of asserting privilege and know what your jurisdiction allows. There are differences in the privilege that can be applied to documents based on the jurisdiction you’re in. Typically, that’s an issue for state law, but we’re starting to see a lot more development of that and sighting of it in federal courts.

Now, last and this is where the Court’s actions really come into play here is in-camera review. We are starting to see (and I’m starting to hear from judges that we work with on a regular basis) a lot more requests for in-camera review of information. You need to be thinking about the fact that when you mark something as privileged. Ask yourself, “if I have this in front of a judge, is a judge going to find this privileged?” If not, then you need to think seriously about whether that should be marked privileged or redacted in terms of communications.

Now, obviously, here in the facts set before this case, this is exacerbated by the length of the time the parties have been arguing about these particular materials. That may not always be the case in your situation, but it’s something definitely to take into account. Give some thought to these things upfront. This is one of those situations where when there are sister or related litigation, you’re always going to have a request for those materials. You need to plan for that at the outset of your discovery. You need to understand what the bases are that you can claim privilege for and get a good argument together in terms of being able to redact that material. You certainly don’t want to end up prejudicing your client or your side by getting sanctions further on in the case. It just never leads to good things in terms of the Court’s view of your behavior in the case.

All right. That’s our #CaseoftheWeek for this week. Thank you so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.

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