Archive: November 2017

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Court Rejects Propriety of Non-Responsive Redactions, Compels Production
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Court Compels Production for Plaintiffs’ Quick Peek Over Defendant’s Objection

Court Rejects Propriety of Non-Responsive Redactions, Compels Production

IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)

In this case, the court granted Plaintiff’s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions “because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.” In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to “hide as much as they dare.” The court further reasoned that Defendants did not assert any privilege or provide a “compelling reason” for their “extensive” redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it “[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds” and granted Plaintiff’s motion to compel.

A copy of the court’s brief order is available here.

Court Compels Production for Plaintiffs’ Quick Peek Over Defendant’s Objection

Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017)

In this case the court granted Plaintiffs’ motion to compel a “quick peek” at approximately 1500 documents withheld as privileged pursuant to the bank authorization and deliberative process privileges despite Defendant’s strong objection.  In making its order, the court noted the parties’ agreement that the clawback provision in their existing protective order would be governed by Rule 502(d), precluding waiver, and also reasoned, among other things, that the quick peek would expedite resolution of the dispute and avoid the need for in camera review, which Plaintiffs would inevitably request if their motion was denied.

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