Doe 1 v. McAleenan
- Beth Freeman
- 5:18-cv-02349
- U.S. District Court · Northern District of California
- 3
In Jane Doe 1 v. Chad F. Wolf, Judge Demarch ruled defendants waived law-enforcement privilege and could not redact a disputed term from a produced document.
The ruling affected the defendants’ ability to redact the disputed term from document DEF-13914–DEF-13918 and the plaintiffs’ access to that term in discovery.
What happened
In Jane Doe 1 v. Chad F. Wolf, the parties disputed whether defendants could remove a term from a document they had already provided to plaintiffs. Defendants said the disclosure was accidental and that the term was protected by the law-enforcement privilege.
Plaintiffs argued defendants gave up that protection by producing the unredacted document and allowing the document and term to be used during two depositions without objecting. Defendants also argued that finding waiver could affect national-security interests.
The court ruled that defendants waived any privilege covering the term because they did not take reasonable steps to prevent its disclosure. Judge Demarch therefore ordered that defendants could not redact the term based on the law-enforcement privilege.
The detailed version
- Doe 1 v. McAleenan · No. 5:18-cv-02349
- Beth Freeman
- Feb. 25, 2020
Background
The parties brought a discovery dispute concerning document DEF-13914–DEF-13918. Defendants sought to claw back the document or redact a term they claimed was protected by the law-enforcement privilege. They argued that producing the unredacted document was inadvertent and that the court had already found the privilege applicable to an identical document.
Plaintiffs argued that defendants waived the privilege by producing the document without redacting the term or asserting privilege over it. Plaintiffs also pointed out that defendants allowed the document to be used during depositions without objection.
Court’s Analysis
The court held that defendants waived whatever privilege may have attached to the disputed term. Under Federal Rule of Evidence 502(b)(2), a privilege holder must take reasonable steps to prevent disclosure. The court found that defendants’ conduct did not meet that requirement because they did not claw back the document after an earlier privilege order and later permitted the document and the disputed term to be used and discussed in two depositions without objection.
The court distinguished an earlier order in which it had been unwilling to find waiver based only on a delay in asserting privilege over inadvertently produced documents. The court found the later use of this document in depositions without objection materially different and inconsistent with an assertion of law-enforcement privilege.
Defendants also argued that the court should be reluctant to find waiver because national-security interests were involved. The court rejected that argument in this dispute because defendants could not explain how the term disclosed specific operational details of a vetting technique or provided a starting point for undermining a particular law-enforcement technique.
Disposition
The court ordered that defendants could not redact the disputed term from document DEF-13914–DEF-13918 based on the law-enforcement privilege. Judge Virginia K. Demarch signed the order on February 25, 2020.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.