Murtha v. New York State Gaming Commission

Background

On July 14, 2020, Magistrate Judge Lisa Margaret Smith held a status conference and resolved discovery disputes between the parties through an oral ruling. Murtha filed an objection under Federal Rule of Civil Procedure 72. He challenged Judge Smith’s determination that the defendants did not have to produce certain partially redacted emails in unredacted form. He also asked the district court to review other partially redacted emails that were not covered by Judge Smith’s ruling and had not yet been reviewed by Judge Smith.

The opinion states that Judge Smith ruled on five redactions: she sustained three redactions and overruled two, directing the defendants to produce the documents containing the two overruled redactions without redactions.

Standard of Review

Because the discovery ruling was non-dispositive, meaning it did not decide the case’s ultimate claims, Rule 72 required the district court to modify or set aside the ruling only if it was clearly erroneous or contrary to law. A ruling is clearly erroneous when the reviewing court is firmly convinced that a mistake was made after considering the entire record. A ruling is contrary to law when it fails to apply, or misapplies, relevant statutes, case law, or procedural rules. The opinion also states that discovery rulings by magistrate judges receive substantial deference, placing a heavy burden on the party seeking to overturn one.

Analysis

Murtha argued that the defendants’ production of partially redacted documents waived attorney-client privilege over the entire documents. The court rejected that argument. It explained that a document may contain both privileged and nonprivileged information, in which case producing the document with proper partial redactions is allowed. Producing the nonprivileged portions does not automatically waive protection over the privileged portions.

The court distinguished this situation from a voluntary disclosure of privileged information. It stated that privilege may be waived when privileged information is voluntarily disclosed, and that selective disclosure of attorney-client communications may result in waiver as to documents concerning the subject disclosed. But Murtha did not argue that the defendants had disclosed attorney-client-protected information; he argued only that disclosure of nonprivileged portions waived protection for the privileged portions. The court found no legal authority supporting that rule.

The court also declined to review the additional documents that were not subject to Judge Smith’s Order. Because all discovery disputes had been referred to the magistrate judge, the district court said it was not appropriate to decide a dispute that Judge Smith had not yet considered.

Disposition

Judge Halpern concluded that Judge Smith’s decision was neither clearly erroneous nor contrary to law. The court denied Murtha’s request to review the additional documents, denied his Rule 72 application, and denied his request to overrule Judge Smith’s Order. The court affirmed and upheld the Order.