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.