The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge
This case was referred to me by Judge Bates for the management of discovery disputes, of which there have been many. Currently pending before the Court is Defendants' Motion for a Protective Order [#99] ("Defs. Mot.").
Plaintiff alleges that she was terminated from her position in public relations at SFX because she was pregnant. Defendants argue that she was terminated because SFX decided it no longer needed to provide public relations services to its clients.
Plaintiff sought electronic documents from her former employer -- items one might expect to find on a computer or server. Initially, plaintiff was told no responsive documents existed, her computer had been thrown away, and her file on the server was empty. Subsequently, defendants notified plaintiff of the existence of a back-up e-mail server called Legato and plaintiff sought assistance from computer forensics experts to determine whether a forensic search of the Legato and local servers might recover the lost data. I held an evidentiary hearing on April 4, 2008 to determine whether a forensic examination would be beneficial, and whether it was necessary.
Ultimately, I concluded that the search was warranted and asked counsel to work together to outline a protocol that should guide the search. The attempt at cooperation was fruitless and I outlined an appropriate protocol based on the parties' competing proposals. See generally D'Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.D.C. 2008).
The protocol provided that the search results would be turned over to defense counsel for privilege review and counsel was given a few weeks to create and file a privilege log. Id. at 133. On March 5, 2009, defendants filed their privilege log, which is 568 pages long and contains 9,413 entries that variously assert attorney-client or work-product privileges, or seek to withhold documents on the grounds that they contain proprietary or private information. The parties have informed me that the searches yielded hundreds of thousands of documents. See, e.g., Joint Motion for Extension of Time to Enlarge Time to Comply [#95] at 1. I convened a hearing on March 10, 2009 to discuss how to proceed efficiently and whether the parties might be aided by the new Federal Rule of Evidence 502(d)-(e).*fn1 See Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Corp., No. 08-CV-468, 2009 WL 464898, at *4-5 (N.D. Tex. Feb. 23, 2009) (recognizing that amended Fed. R. Evid. 502 permits court or parties to fashion a protective order that will permit the parties to go forward with discovery without waiving privilege).
At the hearing, defense counsel explained the diligent efforts she and her colleagues put forth to evaluate the documents that were unearthed by the forensic examination. Counsel offered to provide to plaintiff's counsel a copy of the attorney notes that defendants took while conducting the privilege review to aid plaintiff's counsel in evaluating defendants' assertion of privilege. Defendants' offer is conditioned on the agreement that the notes can only be viewed by plaintiff's counsel and his employees and plaintiff's expert and his employees, but not by the plaintiff or any other person without prior written consent. Defs. Mot. at 3. Plaintiff objects to this proposal and argues that plaintiff must be able to see the notes. Plaintiff's Memorandum in Support of Opposition to Defendants' Motion for Protective Order [#102] ("Pl. Opp.") at 3.
Defendants also agreed at the hearing to permit plaintiff to test the validity of the privilege log using statistical sampling. Defendants offered to allow plaintiff's expert to select a representative sample, that would be made available to plaintiff's counsel for his review to determine whether the privileges asserted were in fact appropriate. Defendants' offer is conditioned on three criteria with which plaintiff takes issue: (1) the documents be designated "attorneys' eyes only," (2) the sample exclude documents that were created on or after March 17, 2006, and (3) plaintiff's expert tell defendants what method he uses to generate the statistical sample prior to doing so.
The parties have now filed their proposed protective orders which reflect these differences.
a. "Attorneys' Eyes Only"
Defendants argue that the plaintiff should not be permitted to see the attorney notes or the documents that are turned over to counsel as part of the statistical sample. In support they contend that counsel does not need his client's assistance to make a legal determination of whether documents are privileged or contain confidential or proprietary information. I agree.
Plaintiff argues that it is necessary for D'Onofrio to see the notes to help her counsel determine whether the documents are relevant, using her superior knowledge of the context in which this litigation arose. This argument would be significantly more persuasive if these documents were being withheld on the basis of relevance, rather than privilege, or because they contain information that should be kept confidential, such as salary information, social security, or telephone numbers. I cannot see ...