Indeed, defendant admits that
even it has not reviewed some of them, and yet claims that the documents are privileged. See id.
at 135 (“the party seeking protection must state with particularity what information is subject to
the privilege [and] the information or documents sought to be shielded must be identified and
described” (internal citations and quotation marks omitted)). Overall, defendant advances
general claims concerning the sensitive nature of the documents, and the adverse consequences
that would result from divulging them. Without more detail regarding the content of the
documents, or the opportunity to review them, the court cannot make a finding that they fall
under the privilege. Id. (“[A] blanket approach to asserting the privilege is unacceptable and is
itself grounds for denying invocation of the privilege.”) (citation omitted). In essence, defendant
asserts that the court should merely take its word that the documents—some of which defendant,
itself, has not reviewed—are privileged. This suggestion is contrary to law. However, even as it
is difficult to evaluate the likelihood of the fallout from disclosure that defendant describes, out
of an abundance of caution, the court will exercise care in attempting to avoid the dire
consequences that defendant claims will occur. Accordingly, as outlined in the June 19, 2014
hearing, the court has fashioned a solution to balance the parties’ competing needs, and to
comply with the dictates of the deliberative process privilege.
Jurisdictional discovery in this matter will proceed in phases. In the first phase,
defendant shall respond to discovery requests regarding information from: April 1, 2008, up to
and including December 31, 2008; and from June 1, 2011, up to and including August 17, 2012.
Defendants shall prepare a detailed privilege log for all documents from these respective time
3
Case 1:13-cv-00465-MMS Document 72 Filed 07/16/14 Page 3 of 4periods that it asserts are privileged. In addition, defendant shall respond to discovery requests
for non-privileged information from August 18, 2012, up to and including September 30, 2012,
regarding topics other than the future profitability of the enterprises or whether and when the
conservatorships might end. Subsequently, plaintiffs shall inform the court as to whether they
believe that discovery for documents created after these time periods are necessary.
Finally, the parties are bound to strict adherence to the protective order that the court has
entered.
2
As stated during the June 19, 2014 hearing, any violation of the protective order that
results in release of information or documents will be met with swift and severe consequences,
which may include: both parties’ forfeiture of the ability to use in these proceedings the
document or information that has been leaked, a prompt investigation, and recommendation for
disbarment. Accordingly, defendant’s motion for a protective order is GRANTED IN PART
and DENIED IN PART.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEEN
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