Magistrate Judge Sides With Social Media Plaintiffs on Rule 502(d) Scope

Rule 502(d) in federal courts is designed as a safeguard against the inadvertent production during discovery of documents and materials protected by attorney-client privilege or work product doctrine privileges. The debate before Hixson was whether the scope of the court's Rule 502(d) order for the MDL should be confined to those protections, as the plaintiffs favor, or whether it should be expanded to include nondescript statutory privileges as well, as the defendants unsuccessfully proposed.

The judge's “tentative thought, at least, is that since Rule 502 applies to attorney-client privilege and attorney work product, I don’t see why the 502(d) order would apply to anything else,” said Hixson to open the discussion.

Lauren Bell of Munger Tolles, an attorney for defendant Snap, responded that “in this case, we can anticipate that other privileges may come into play, namely the Stored Communications Act.” That 1986 statute provides Fourth Amendment-like privacy protections for emails and other digital communications stored on the internet, limiting the government’s ability to compel an internet service provider to turn over that information.

All the defendants “possess content of communications with users,” said Bell. “We anticipate that the plaintiffs will request that in discovery, including from third-party user accounts,” she said. “For that reason, from our perspective, we think it makes the most sense from an efficiency standpoint to include the protections that are reasonably anticipated, namely statutory provisions in this 502(d) order.”

As the judge understands Rule 502(d), he told Bell, “its primary purpose is to avoid inadvertent production of discovery materials.” Said Hixson: “I would be quite surprised if the defendants inadvertently produced something that was covered by the Stored Communications Act.”

It’s obviously the defendants’ goal “not to make any mistakes in producing this,” responded Bell. “But we anticipate third-party users could come into play,” and the defendants worry that could raise the risk of inadvertent disclosures, she said. She cited one example of adult family members in a household who share their accounts with minors in the same home. Those are “the types of situations we’re trying to provide coverage for,” she said.

Asked by Hixson whether the defendants planned to give the court a list of the statutory privileges they would like to see covered in the Rule 502(d) order, Bell responded that “at this stage, we would just prefer to leave it as statutory privileges.” The Stored Communications Act is just one example “of what we can reasonably expect at this point in the discovery process,” she said. “We would prefer to leave it as all statutory privileges.”

The plaintiffs agree with Hixson that Rule 502 “is limited to the attorney-client and work-product privileges,” countered their attorney, Jennifer Scullion of Seeger Weiss. The plaintiffs worry that an “amorphous statement” written into the Rule 502(d) order would widen the order’s scope to include “other statutory privileges and other bases for protection,” said Scullion. “It just leaves us not knowing exactly what is at issue here,” she said.

It’s “incumbent” on the defendants “to comply with their obligations” under the Stored Communications Act, said Scullion. “We may have instances where we need to discuss what they are producing, not producing” under the statute, she said. “That can be taken up” through the course of discovery, she said.

In the end, Hixson decided he was “going to side with the plaintiffs on this one,” said the judge. “I think Rule 502 is about the attorney-client privilege and the attorney work product, and I think that should be the scope of the 502(d) order,” he said. “I also don’t like the open-ended reference to statutory privileges without an explanation of what is in that black box, because I don’t know what I would be approving,” he said.