Submitted: August 15, 2017
W. Will, WILSON SONSINI GOODRICH & ROSATI, P.C.,
Wilmington, Delaware; Attorney for Special Discovery Master.
E. Montejo, John G. Day, PRICKET, JONES & ELLIOTT, P.A.,
Wilmington, Delaware; Attorneys for Certain Plaintiffs.
M. Monhait, ROSENTHAL MONHAIT & GODDESS, P.A.,
Wilmington, Delaware; Thomas R. Ajamie, Dona Szak, David S.
Siegel, Ryan van Steenis, AJAMIE LLP, Houston, Texas; Michael
A. Pullara, Houston, Texas; Attorneys for Certain Plaintiffs.
C. Schiltz, DRINKER BIDDLE & REATH LLP, Wilmington,
Delaware; Maurice L. Brimmage, Jr., AKIN GUMP STRAUSS HAUER
& FELD LLP; William M. Connoly, DRINKER BIDDLE &
REATH LLP, Philadelphia, Pennsylvania; Attorneys for
Discovery Master Jim Timmins is in the final stages of
drafting a report that this court asked him to prepare.
Before completing his report, he would like to review eight
documents that the defendants (collectively,
"AT&T") withheld as privileged. He believes,
but is not certain, that the documents may be relevant to his
analysis. He proposes to review the documents in
camera to determine whether they are relevant. If they
are not relevant, then he will not consider them further and
the documents will not be produced. If they are, then
AT&T has agreed to produce the documents to Timmins and
the plaintiffs, subject to an order pursuant to Delaware
Uniform Rule of Evidence 510(f) that preserves any applicable
privileges for purposes other than this litigation.
plaintiffs object to this approach. They insist that if
Timmins looks at the documents in camera, privilege
will be waived. They also object that if Timmins concludes
that the documents are not relevant, then Timmins'
decision will be final, even though he is a master whose
decisions must be reviewed de novo by a
view, this court has the authority pursuant to Rule 510(f) to
authorize the procedure that Timmins has proposed. Rule
510(f) states: "Notwithstanding anything in these rules
to the contrary, a court may order that the privilege or
protection is not waived by disclosure connected with the
litigation pending before the court-in which event the
disclosure is also not a waiver in any other
proceeding." This subsection is a recent addition the
Delaware Uniform Rules of Evidence, and there does not appear
to be any Delaware state court authority interpreting it. The
rule was modeled, however, on a comparable federal rule, so
federal authorities interpreting the analogous rule are
addressing the federal analog-Federal Rule of Evidence
502(d)-teach that it was adopted to facilitate "cost
reduction and predictability." The advisory committee notes
make clear that the drafters anticipated its inclusion in
pre-discovery orders so that litigants could produce batches
of information without having to engage in costly privilege
reviews. But that was not the only possible use, and the
drafters left the rule broad so that "a federal court
may order that disclosure of privileged or protected
information 'in connection with' a federal proceeding
does not result in waiver."
date, the federal courts have deployed Rule 502(d) in
creative ways to promote judicial economy. For example,
courts have used it to allow parties to take a "quick
peek" at allegedly privileged information to confirm the
accuracy of privilege logs without the need for further
judicial involvement. At least one court relied on the rule when
declining to stay an order compelling production of
privileged documents pending appeal. The court reasoned that
if the appellate court ultimately determined that some of the
documents were privileged and should not have been produced,
a Rule 502(d) order could be entered to remedy any potential
harm. In short, the plain language of the rule
and its use to date suggest that courts can and should invoke
Rule 510(f) to fashion solutions to otherwise difficult
problem here is that AT&T does not want to waive
privilege inadvertently, either by providing the documents to
Timmins or by producing them to the plaintiffs. Rule 510(f)
appears designed to solve precisely this problem. This court
can and will enter an order pursuant to Rule 510(f) which
provides that neither type of production will work a broader
waiver of the privilege.
second problem is the plaintiffs' concern that Timmins
should not receive evidence from AT&T that they have not
seen. But this problem is inherent in in camera
review, which relies on a neutral decision maker, usually the
court itself, to examine documents and make determinations.
Timmins is a neutral decision maker who can conduct in
camera review in the first instance. Other discovery
masters have conducted in camera
reviews. So can Timmins.
final problem is the plaintiffs' concern that
Timmins' decision on relevance will be unreviewable and
hence a final determination that exceeds his powers as a
special discovery master. This problem can be addressed by
requiring Timmins to include in his report an explanation for
his conclusion that documents were not relevant, should he
indeed reach that outcome. His explanation should not go into
so much detail as to reveal the substance of the documents
themselves, but it should convey the substance of his
analysis to a reviewing court. The plaintiffs can evaluate
that explanation and ...