In Fairholme Funds, Inc. et. al., v. United States, No. 13-456c, (Ct. of Federal Claims, 2017), Plaintiffs (financial company affiliated parties) sought compensation under the Fifth Amendment, contending that Defendant (United States government) engaged in taking their property without just compensation. In response to a Court order issued after Plaintiffs filing of a motion to compel, Defendant produced an additional 3,500 documents.
From a review of this court ordered production, Plaintiff identified 38 documents that they argued should not have been withheld on the basis of privilege. Defendant responded that it would review the documents and then provide a further response to Plaintiffs as to the withheld documents. Plaintiffs counter-proposed that the parties use the quick peek procedure authorized by FRE 502(d). Defendant did not agree to the use of the procedure. Plaintiffs filed a second motion to compel—the motion currently before the court.
The Court stated that “the narrow issue before the court is whether, absent defendant’s consent, the court should grant plaintiffs’ request and enter an FRE 502(d) order allowing plaintiffs to review the 1500 documents being withheld by defendant pursuant to the deliberative process and bank examination privileges.”
Specifically, Plaintiffs sought to review approximately 1,500 documents dated May 2012 and later being withheld by Defendant. In opposition to Plaintiffs’ motion, Defendant argued that the use of the “quick peek procedure” is inappropriate because (1) defendant has already conducted a comprehensive review of its documents, (2) once plaintiffs have viewed privileged information, defendant has no way to unring the bell, and (3) defendant does not consent to use of the procedure.
The Court did not find the Defendant’s arguments persuasive. First, it established that the Court has broad discretion to fashion discovery orders. Second, it found that the most efficient resolution to the question regarding the status of whether the 1,500 documents were privileged or not was the use of the “quick peek” process, rather than taking a piece-meal approach to the review. Lastly, the defendant’s other concerns can be addressed by use of a protective order. The Court issued an order granting Plaintiff’s request for utilization of the “quick peek” provisions of FRE 502(d).