IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN RE CELLULAR TELEPHONE ) COORDINATED
PARTNERSHIP LITIGATION ) C.A. No. 6885-VCL
MEMORANDUM OPINION

Date Submitted: August 15, 2017
Date Decided: August 29, 2017

Lori W. Will, WILSON SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware;
Attorneyfor Specl'al Discovery Master.

Marcus E. Montejo, John G. Day, PRICKET, JONES & ELLIOTT, P.A., Wilmington,
Delaware; Attorneysfor Certain Plaintijjfs.

Norman M. Monhait, ROSENTHAL MONHAIT & GODDESS, P.A., Wilmington,
Delaware; Thomas R. Ajamie, Dona Szak, David S. Siegel, Ryan van Steenis, AJAMIE
LLP, Houston, Texas; Michael A. Pullara, Houston, Texas; Attorneys for Certaz'n
Plaintijjfv.

Todd C. Schiltz, DRINKER BIDDLE & REATH LLP, Wilmington, Delaware; Maurice
L. Brimmage, Jr., AKIN GUMP STRAUSS HAUER & FELD LLP; William M. Connoly,
DRINKER BIDDLE & REATH LLP, Philadelphia, Pennsylvania; Attorneys for
Defendam‘s.

LASTER, V.C.

Special Discovery Master J im Timmins is in the final stages of drafting a report that
this court asked him to prepare. Before completing his report, he would like to review eight
documents that the defendants (collectively, “AT&T”) withheld as privileged He believes,
but is not certain, that the documents may be relevant to his analysis. He proposes to review
the documents in camera to determine whether they are relevant. If they are not relevant,
then he will not consider them further and the documents will not be produced. If they are,
then AT&T has agreed to produce the documents to Timmins and the plaintiffs, subject to
an order pursuant to Delaware Uniform Rule of Evidence 510(f) that preserves any
applicable privileges for purposes other than this litigation.

The plaintiffs object to this approach. They insist that if Timmins looks at the
documents in camera, privilege will be waived. They also object that if Timmins concludes
that the documents are not relevant, then Timmins’ decision will be final, even though he
is a master whose decisions must be reviewed de novo by a constitutional judge.l

In my view, this court has the authority pursuant to Rule 510(f) to authorize the
procedure that Timmins has proposed. Rule 51()(f) states: “Notwithstanding anything in
these rules to the contrary, a court may order that the privilege or protection is not waived
by disclosure connected with the litigation pending before the court_in which event the
disclosure is also not a waiver in any other proceeding.” This subsection is a recent addition

the Delaware Uniform Rules of Evidence, and there does not appear to be any Delaware

 

l See Dl'GiacOb/)e v. Sestak, 743 A.2d 180, 184 (Del. 1999).

state court authority interpreting it. The rule was modeled, however, on a comparable
federal rule, so federal authorities interpreting the analogous rule are persuasive.2

Authorities addressing the federal analog-Federal Rule of Evidence 502(d)_teach
that it was adopted to facilitate “cost reduction and predictability.”3 The advisory
committee notes make clear that the drafters anticipated its inclusion in pre-discovery
orders so that litigants could produce batches of information without having to engage in
costly privilege reviews. But that was not the only possible use, and the drafters left the
rule broad so that “a federal court may order that disclosure of privileged or protected
information ‘in connection with’ a federal proceeding does not result in waiver.”4

To date, the federal courts have deployed Rule 502(d) in creative ways to promote
judicial economy. For example, courts have used it to allow parties to take a “quick peek”

at allegedly privileged information to confirm the accuracy of privilege logs without the

 

2 See Atkins v. State, 523 A.2d 539, 542 (Del. 1987); see also Perry v. Berkley, 996
A.2d 1262, 1267 (Del. 2010).

3 Edwin M. Buffmire, T he (Unapprecl`atea') Multia’imensional Beneflts of Rule
5 02(a’).' Why ana’ How Litigants Shoula’ Better Utilize the New Fea’eral Rule of Evidence,
79 Tenn. L. Rev. 141, 155 (2011); see also Fed. R. Evid. 502 advisory committee’s notes.

4 Fed. R. Evid. 502 advisory committee’s notes; see also th`taker Chalk Swl`na’le
& Sawyer, LLP v. Dart Oil & Gas Corp., 2009 WL 464989, at *4 (N.D. TeX. Feb. 23,
2009) (noting the plain language of the Rule extends beyond inadvertent disclosure);
Michael Correll, T he Troubling Ambz'tl'on of Fea’eral Rule of Evidence 502(d), 70 Mo. L.
Rev. 1031, 1046 (2012) (“Congress failed to provide any guidance as to what boundaries,
if any, circumscribe Rule 502(d).”).

need for further judicial involvement.5 At least one court relied on the rule when declining
to stay an order compelling production of privileged documents pending appeal. The court
reasoned that if the appellate court ultimately determined that some of the documents were
privileged and should not have been produced, a Rule 502(d) order could be entered to
remedy any potential harm.6 In short, the plain language of the rule and its use to date
suggest that courts can and should invoke Rule 510(f) to fashion solutions to otherwise
difficult discovery problems.

One problem here is that AT&T does not want to waive privilege inadvertently,
either by providing the documents to Timmins or by producing them to the plaintiffs. Rule
510(f) appears designed to solve precisely this problem. This court can and will enter an
order pursuant to Rule 510(f) which provides that neither type of production will work a
broader waiver of the privilege.

A second problem is the plaintiffs’ concern that Timmins should not receive
evidence from AT&T that they have not seen. But this problem is inherent in in camera
review, which relies on a neutral decision maker, usually the court itself, to examine

documents and make determinations Timmins is a neutral decision maker who can conduct

 

5 See, e.g., D'onoj?”io v. SFX Sports Gp., Inc., 2010 WL 3324964, at *3 (D.D.C.
Aug. 24, 2010).

6 Jicarz'lla Apache Nation v. Unitea’ States, 91 Fed. Cl. 489, 493-94 (Fed. Cl. 2010).

in camera review in the first instance. Other discovery masters have conducted in camera
reviews.7 So can Timmins.

The final problem is the plaintiffs’ concern that Timmins’ decision on relevance
will be unreviewable and hence a final determination that exceeds his powers as a special
discovery master. This problem can be addressed by requiring Timmins to include in his
report an explanation for his conclusion that documents were not relevant, should he indeed
reach that outcome. His explanation should not go into so much detail as to reveal the
substance of the documents themselves, but it should convey the substance of his analysis
to a reviewing court. The plaintiffs can evaluate that explanation and decide whether to
take exception to it, just as they can with other aspects of the report. If necessary, this court
will examine the documents in camera as well.

Timmins’ motion is granted, subject to the clarification that if Timmins determines
that the documents are not relevant, he will include a brief explanation for that

determination in his report.

 

7 See, e.g., Porztor¢e v. Milso ladus. Corp., 2014 WL 2439973, at * 17 (Del. Ch. May
29, 2014) (reviewing a’e novo a special master’s determination of privilege after reviewing
documents m camera); Kl'rzg v. Deloz'tte LLP, 2010 WL 3489735, at *5 (Del. Ch. Sept. 7,
2010) (suggesting “in camera review by the Court of a S`pecial Master may be the most
efficient solution” for discovery disputes); NACCO, Ina’as., Inc. v. Applz'ca Inc., 2010 WL
3220676, at *1 (Del. Ch. Aug. 10, 2010) (considering “appoint[ing] a Special Master to
review some quantum of documents in camera”); Darm'elle v. Sarzta Fe lna’us., Inc., 1980
WL 258074, at *1 (Del. Ch. Oct. 9, 1980) (“the most efficacious way to move this case
forward is for a special master to be appointed to examine such documents in camera”).

