Protective Order is Not a Vehicle to Challenge Privilege, Court Rules

Want to avoid producing privileged information in response to a document request, you say? Of course, you must have a solid, good-faith basis for asserting a privilege, but how does one procedurally challenge a document request on privilege grounds? A federal court recently reminded us that a motion for protective order is not the proper way for a discovery-responding party to obtain a privilege decision. But were there adverse consequences? RX Savings, LLC v. Besch, 2020 WL 5094686 (D. Kan. Aug. 28, 2020). You may read the decision here.

Do you have a Privilege Objection?

Before procedural etiquette matters, the discovery-responding party must determine whether an evidentiary privilege or non-disclosure doctrine protects putatively protected information from disclosure. If asserting the attorney–client privilege, the question is whether the information sought is a confidential communication between a client and its attorney made for legal-advice purposes with an intent that the communication remain confidential.

If asserting the work-product doctrine, then the question is whether the information is a document prepared in anticipation of litigation or for trial by or for another party or its representative, including its lawyer. And there are myriad other privileges, including a psychotherapist–patient privilege, bank-examination privilege, spousal privilege, clergy–communicant privilege, accountant–client privilege, and so on. But remember—rules of confidentiality are not evidentiary privileges.

Rule 34 Objections

If one of these privileges or non-disclosure doctrines covers requested information, then FRCP 34 (and its state-law equivalents) requires the responding party to state its objections “with specificity.” The rule also requires the party to identify whether it is withholding any documents on the basis of these objections. As now-retired Magistrate Judge Andrew Peck said in his “wake-up call,” “most lawyers who have not changed their ‘form file’” violate Rule 34. Fischer v. Forrest, 2017 WL 773694 (SDNY Feb. 28, 2017).

Privilege Log

FRCP 26(b)(5), adopted in 1993, requires a responding party to identify on a privilege log the documents it is withholding based on privilege-related objections. An objecting party’s log must provide sufficient information to enable its adversary to evaluate the applicability of the claimed privilege or protection.

A party may seek a protective order regarding the scope and detail of the privilege log if providing the information presents an “unreasonable burden.” But one should not confuse the ability to seek a protective order on privilege-log scope with a protective order to prevent disclosure of privileged information.  And parties should remember this adage:

Although the person from whom the discovery is sought decides whether to claim a privilege or protection, the court ultimately decides whether, if this claim is challenged, the privilege or protection applies.

FRCP 26 Advisory Committee Notes.

Motion to Compel

To start this privilege decision-making process, the party seeking the putatively privileged information must file a Rule 37(a)(1)(B)(iv) motion to compel.  Although the party seeking discovery files the motion, the party asserting the privilege or non-disclosure doctrine has the burden of proving the protection applies.

Motion for Protective Order

In RX Savings, the defendant properly filed a Rule 37 motion to compel seeking production of communications involving in-house counsel and a Board member that the plaintiff withheld as privileged. The plaintiff did not file a response to the motion.

Instead, the plaintiff filed a FRCP 26(c) motion for protective order. This rule simply provides that—

The court may, for good cause, issue an order to protect the party or person from annoyance, embarrassment, oppression, or undue burden or expense.

One of the enumerated remedies is “forbidding the disclosure or discovery.” But as the RX Savings court stated, “attorney-client privilege isn’t a proper ground for a protective order”:

Rule 26(c) does not provide for any type of order to protect a party from having to divulge privileged information or materials that are not calculated to lead to the discovery of admissible evidence.

Rather, the court noted, the “plaintiffs should have appropriately asserted their objections to the e-mails at issue through an opposition to the motion to compel.”

The court could have simply denied the protective-order motion on these grounds. And if so, it could have granted the motion to compel because the plaintiff never formally opposed it. But the court applied leniency and addressed the privilege objections on the merits.

And guess what? The plaintiff won with the court sustaining its privilege objections.

But think of the alternative outcome—the plaintiff, with clearly valid privilege objections, could have lost those objections because it filed a protective-order motion rather than following the process outlined above.

Yikes.