In re Google RTB Consumer Privacy Litigation

Background

The parties asked the court to resolve one disagreement about a proposed order under Federal Rule of Evidence 502(d). That rule allows a court to establish procedures for protecting attorney-client privileged and work-product-protected material that is produced during discovery, including procedures for clawing back inadvertently produced documents without waiving the protection.

The parties agreed that if the producing party discovered that it had produced a privileged document, it would have 14 days to send a clawback notice, identify the document by Bates number, describe it in a privilege log, and provide either a redacted version or a slip sheet. If the receiving party disputed the privilege claim, it would have to sequester the document, its copies, and notes that reproduced or disclosed the protected information while the dispute was pending.

The disagreement concerned whether the receiving party could use the contents of the challenged document in briefing or argument contesting the privilege claim. Plaintiffs proposed allowing that use for the privilege challenge. Google proposed that the receiving party could not review the document and could not present its contents to the court for a privilege determination.

Court’s Analysis

The court considered the procedures in Federal Rule of Civil Procedure 26(b)(5). When a party claims privilege over information already produced, the receiving party must promptly return, sequester, or destroy the information and must not use or disclose it until the privilege dispute is resolved. The rule does allow the party to present the disputed material to the court under seal for a private review, called an in camera review.

The court concluded that Rule 26(b)(5) does not otherwise allow the receiving party to examine and discuss the contents of a document after receiving a clawback notice. The court reasoned that permitting such review and briefing could undermine Rule 502(d)’s purpose of allowing efficient discovery without exhaustive pre-production privilege reviews. The court also relied on the ethical duties applicable to attorneys practicing in California, as described by Google, concerning obviously privileged or protected material that appears to have been produced inadvertently.

The court acknowledged that different circumstances might exist when the document had already been used or disclosed substantively in the litigation—for example, when its contents had been discussed in a court filing or testimony had been obtained about it in a deposition. But it held that, in the typical situation covered by Rule 502(d), the receiving party need not be permitted to examine and brief the document’s contents unless the parties agree otherwise. A sufficiently specific clawback notice and privilege description should generally allow the parties to evaluate and discuss the claim, and the court could require the disputed document for in camera review.

Disposition

The court rejected plaintiffs’ proposed text. It adopted Google’s proposed language requiring the receiving party to “not review” the challenged document. It rejected, however, Google’s proposed restriction against presenting the information to the court because that restriction would improperly prevent submission of the document for in camera review under Rule 26(b)(5)(B).

The court directed that the parties could submit a compliant proposed stipulation if they wanted the court to enter a Rule 502(d) order. If they did not do so, the other provisions of Rule 502 would apply. Judge Virginia K. Demarchi issued the order.