In Uncategorized on 05/12/2016 at 16:39

No, this blogpost does not comment on means to enforce certain laws relating to public facilities in North Carolina. Rather, this is yet another of Judge Laro’s Sisyphean tasks in the Guidant LLC, F.K.A., Guidant Corporation, and Subsidiaries, Docket No. 5989-11, filed 5/12/16, discovery argy-bargy.

Guidant wants IRS papers; IRS claims deliberative privilege; Guidant says what deliberations? IRS says here’s the privilege log for all 4,249 (at least) documents. Guidant says “it’s incomplete.” IRS says “no it isn’t.”

Judge Laro gets the battling discoverers on the horn.

“The petitioners suggested that the Court issue a Protective Order for the benefit of respondent if respondent would release the documents to petitioners during discovery. Respondent felt that the Protective Order would not adequately protect respondent. Respondent suggested that a sampling of the thousands of documents claimed to be subject to the privilege be examined in camera by the Court. Petitioners objected stating that such sampling would be inherently biased because respondent would know what the documents contained because they had possession of them but petitioners would not know.” Order, at p. 2.

Solomonic Judge Laro says, “Go take a quick peek.”

Here’s the skinny: “It is described in the Advisory Committee Notes accompanying Federal Rule of Civil Procedure 26(b)(2). The procedure is designed and intended to minimize the costs and delays associated with reviewing large volumes of documents that are, or might be subject to disputed claims of privilege.” Order, at p. 2.

FRE Rule 502 says no waiver of privilege if judge so orders.

So Guidant’ attorneys and IRS’s attorneys can take a quick peek at the 4,249 documents (be the same more or less). Those which they both agree are privileged remain so. Those they agree aren’t, get exchanged.

No privilege waived. And play nice.

“Get ‘er done,” as the Cable Guy says, by May 17.

And report to Judge Laro.

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