Provide it all, or provide nothing at all.

Just a Quick Peek

Author: Victoria Ferenz
Case Citation: Fairholme Funds, Inc. v. United States, 681 Fed.Appx. 945 (C.A.Fed., 2017)
Employee/Personnel/Employer Implicated: Government
eLesson Learned: If you do not want to provide documents and you are claiming privilege, then do not provide any of the documents and hold your ground. Providing some of the documents, but not all of them will lead to the courts ordering you to produce them all in the end anyway.

In Fairholme Funds, Inc. v. United States, the Plaintiffs motioned to compel the production of approximately 1,500 documents that the Defendant was withholding pursuant to deliberative process and bank examination privileges. The Plaintiffs sought access to these protected documents pursuant to the “quick peek” procedure authorized by FRE 502(d) of the Federal Rules of Evidence. Absent Defendant’s consent, the court granted Plaintiff’s request and entered an FRE 502(d) order allowing Plaintiffs to review the documents being withheld.

The premise of the Defendant’s argument was that they would not produce thousands of documents for the Plaintiff’s because of the privilege that protected them. However, the Defendant’s had previously provided small quantities of documents to the Plaintiffs that were also allegedly protected under privilege. The defendants had previously produced over 3,500 documents in response to a court order, all of which they had also claimed privilege to. In another instance, they produced an additional 22 documents requested by the Plaintiffs.

This time around, due to so many battles with Defendant’s surrounding these documents, Plaintiffs suggested that the court allow their use of a “quick peek procedure.” This procedure would allow Plaintiffs to review the 1,500 documents at issue at a time and place determined by defendant, identify the documents they believe are relevant to the case, and request production. Plaintiff’s believed that this was the only way to ensure that they would receive all of the documents they were entitled to in a much faster and more efficient manner. In their view, because the defendants released additional documents each time the plaintiff’s challenged its privilege claims, this remedy was the best solution besides imposing wholesale privilege waiver as a sanction.

The court agreed that the defendant’s production of documents was piecemeal, and that this procedure was the best way to facilitate the speedy and efficient conclusion of jurisdictional discovery in this case. It is important to note that the order did contain a clawback provision, which stated that any inadvertent disclosure of information subject to privilege did not waive a party’s claim of privilege for that document or subject matter at a later date.

The court stated that its use of the quick peek procedure was not intended as a sanction for any behavior on the defendant’s part, but rather as a means of expediting the completion of jurisdictional discovery in this case and conserving the court’s limited resources.

Although the court went out of their way to explain that the use of this procedure was not to be viewed as a punishment, it is a direct consequence of the Defendant’s conduct. The Defendants made it a pattern to give Plaintiff’s a hard time, require Plaintiff’s to use the courts, and then ultimately did provide Plaintiff’s with the documents they requested. These repeated acts are what led the court to grant Plaintiff’s motion for a “quick peek,” to speed things up and stop Defendant from dragging the discovery phase out, costing time, money, and valuable court resources. The Defendant should have made a choice, in the beginning, to either provide all requested documents or claim privilege and provide nothing.

Victoria Ferenz is a third year at Seton Hall University School of Law, focusing her studies in the area of Patent Law. She received her B.S. in BioMedical Science from Quinnipiac University. After graduation, Victoria will be clerking in the Superior Court of New Jersey.

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