IN THE UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF ILLINOIS
CITY OF EAST ST. LOUIS, ) ) Plaintiff, ) ) vs. ) Case No. 3:21-cv-00232-DWD ) MONSANTO CORPORATION, ) PHARMACIA LLC, and ) SOLUTIA INC., ) ) Defendants. )
MEMORANDUM AND ORDER DUGAN, District Judge: Before the Court is Defendants’ Motion to Enter Their Proposed Order Pursuant To Federal Rule of Evidence 502(d) (Doc. 93) (“Motion”). See Fed. R. Evid. 502(d). Plaintiff filed a Response (Doc. 95) contesting Defendants’ Motion. For the following reasons, the Court, consistent with this Memorandum and Order, GRANTS Defendants’ Motion. Background This case was removed from the circuit court of St. Clair County, Illinois. Plaintiff filed a 10-count First Amended Complaint for Damages and Abatement (Doc. 29), alleging public nuisance, violations of the ordinances of the City of East St. Louis, continuing trespass, design defect, failure to warn and instruct, and negligence by Defendants.1 Plaintiff’s allegations relate to “the contamination of vast swaths of its land with polychlorinated biphenyls… manufactured in Defendants’ Monsanto Plant in
1Count III of Plaintiff’s First Amended Complaint was dismissed without prejudice on August 30, 2021. adjacent Sauget, Illinois.” (Doc. 29, ¶ 1). A Scheduling and Discovery Order was adopted (Doc. 54) and amended (Doc. 85) by the Court pursuant to the parties’ Joint Motion to
Extend All Deadlines (Doc. 83). Discovery is due to be completed in August 2023 and dispositive motions are due to be filed in September 2023. (Doc. 85). The parties have jointly indicated that a large number of written discovery requests were served and an extensive amount of material was produced in this case. (Doc. 83 ¶¶ 8-9). The parties have also jointly indicated that productions are ongoing. (Doc. 83 ¶ 9). Further, the parties filed a Joint Stipulation Establishing Document and Electronically Stored Information
Production Protocol (Doc. 60). Now, by their Motion, Defendants seek a Rule 502(d) order. Defendants submit that they have conferred with Plaintiff regarding their Proposed Order, but that Plaintiff objects to the entry of the Proposed Order. Defendants argue good cause exists for a grant of the Motion because their Proposed Order would afford the parties the full protections
of Rule 502(d) and, therefore, serve the parties’ best interests. Plaintiff filed a Response (Doc. 95) contesting Defendants’ Motion. Plaintiff suggests that Defendants have provided boilerplate language regarding “good cause” and the “best interests” of the parties but have not otherwise explained why a Rule 502(d) order is necessary. Plaintiff argues the parties are “automatically protected” from waivers
caused by the inadvertent disclosure of privileged information under subdivision (b) of Rule 502. See Fed. R. Evid. 502(b). Plaintiff also submits that Rule 26(b)(5)(B) provides a mechanism for resolving disputes related to the inadvertent disclosure of privileged information. See Fed. R. Civ. P. 26(b)(5)(B). Absent the requisite showing that a Rule 502(d) order is necessary or that there is a present dispute relating to inadvertent disclosures, Plaintiff argues the aforementioned protections are sufficient in this case.
In a Reply in Support of Their Motion (Doc. 96), Defendants argue Plaintiff misunderstands the purpose of Rule 502 and its separate subdivisions (b) and (d). See Fed. R. Evid. 502(b), (d). Defendants distinguish those subdivisions and argue a Rule 502(d) order is necessary because discovery involves an extensive amount of electronically stored information, there is a potential for each party to disclose privileged information, and any dispute that arises regarding privileged information will disrupt
the discovery process and necessitate the expenditure of significant time and resources by the parties. Since millions of pages of documents have already been produced in this case and supplemental productions are presently ongoing, Defendants argue a Rule 502(d) order will benefit both parties and ensure discovery is conducted efficiently. Analysis
Under Rule 26(c)(1), a party may move for a protective order from the Court. See Fed. R. Civ. P. 26(c)(1). The motion must include a certification that the movant has, in good faith, conferred or attempted to confer with affected parties in order to resolve the dispute without Court action. Id. If good cause is shown by the movant, the Court may issue an order to protect a party from annoyance, embarrassment, oppression, or undue
burden or expense, including an order specifying the terms for disclosures in discovery. See Fed. R. Civ. P. 26(c)(1)(B). Good cause requires a particular and specific demonstration of fact rather than a stereotyped and conclusory statement. See Harrisonville Tel. Co. v. Illinois Commerce Comm’n, 472 F. Supp. 2d 1071, 1078 (S.D. Ill. 2006) (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2035 (3d ed. 1998 & Supp. 2006)); accord Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981));
see also Andrew Corp. v. Rossi, 180 F.R.D. 338, 341 (N.D. Ill. 1998) (noting good cause under Rule 26(c) generally requires specific examples of articulated reasoning as opposed to stereotyped and conclusory statements); Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997) (noting, inter alia, good cause generally signifies a sound basis or legitimate need for judicial action). Relatedly, Rule 502 applies to disclosures of communications or information
covered by only the attorney-client privilege or the work-product privilege. See Fed. R. Evid. 502; DR Distrib., LLC v. 21 Century Smoking, Inc., No. 12-50324, 2022 WL 2905838, at *10 (N.D. Ill. 2022). Subdivision (d) of Rule 502 states: “A federal 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 federal
or state proceeding.” Fed. R. Evid. 502(d). As such, subdivision (d) of Rule 502 enables the Court, sua sponte or on a party’s motion, to enter an order that allows the parties to conduct and respond to discovery expeditiously and without the need for exhaustive pre- production privilege reviews. See Fed. R. Evid. 502 Addendum to Advisory Committee Notes, subdivision (d); RTC Indus., Inc. v. Fasteners for Retail, Inc., No. 17-3595, 2020 WL
1148813, at *6 (N.D. Ill. 2020); cf. DR Distrib., No.
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IN THE UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF ILLINOIS
CITY OF EAST ST. LOUIS, ) ) Plaintiff, ) ) vs. ) Case No. 3:21-cv-00232-DWD ) MONSANTO CORPORATION, ) PHARMACIA LLC, and ) SOLUTIA INC., ) ) Defendants. )
MEMORANDUM AND ORDER DUGAN, District Judge: Before the Court is Defendants’ Motion to Enter Their Proposed Order Pursuant To Federal Rule of Evidence 502(d) (Doc. 93) (“Motion”). See Fed. R. Evid. 502(d). Plaintiff filed a Response (Doc. 95) contesting Defendants’ Motion. For the following reasons, the Court, consistent with this Memorandum and Order, GRANTS Defendants’ Motion. Background This case was removed from the circuit court of St. Clair County, Illinois. Plaintiff filed a 10-count First Amended Complaint for Damages and Abatement (Doc. 29), alleging public nuisance, violations of the ordinances of the City of East St. Louis, continuing trespass, design defect, failure to warn and instruct, and negligence by Defendants.1 Plaintiff’s allegations relate to “the contamination of vast swaths of its land with polychlorinated biphenyls… manufactured in Defendants’ Monsanto Plant in
1Count III of Plaintiff’s First Amended Complaint was dismissed without prejudice on August 30, 2021. adjacent Sauget, Illinois.” (Doc. 29, ¶ 1). A Scheduling and Discovery Order was adopted (Doc. 54) and amended (Doc. 85) by the Court pursuant to the parties’ Joint Motion to
Extend All Deadlines (Doc. 83). Discovery is due to be completed in August 2023 and dispositive motions are due to be filed in September 2023. (Doc. 85). The parties have jointly indicated that a large number of written discovery requests were served and an extensive amount of material was produced in this case. (Doc. 83 ¶¶ 8-9). The parties have also jointly indicated that productions are ongoing. (Doc. 83 ¶ 9). Further, the parties filed a Joint Stipulation Establishing Document and Electronically Stored Information
Production Protocol (Doc. 60). Now, by their Motion, Defendants seek a Rule 502(d) order. Defendants submit that they have conferred with Plaintiff regarding their Proposed Order, but that Plaintiff objects to the entry of the Proposed Order. Defendants argue good cause exists for a grant of the Motion because their Proposed Order would afford the parties the full protections
of Rule 502(d) and, therefore, serve the parties’ best interests. Plaintiff filed a Response (Doc. 95) contesting Defendants’ Motion. Plaintiff suggests that Defendants have provided boilerplate language regarding “good cause” and the “best interests” of the parties but have not otherwise explained why a Rule 502(d) order is necessary. Plaintiff argues the parties are “automatically protected” from waivers
caused by the inadvertent disclosure of privileged information under subdivision (b) of Rule 502. See Fed. R. Evid. 502(b). Plaintiff also submits that Rule 26(b)(5)(B) provides a mechanism for resolving disputes related to the inadvertent disclosure of privileged information. See Fed. R. Civ. P. 26(b)(5)(B). Absent the requisite showing that a Rule 502(d) order is necessary or that there is a present dispute relating to inadvertent disclosures, Plaintiff argues the aforementioned protections are sufficient in this case.
In a Reply in Support of Their Motion (Doc. 96), Defendants argue Plaintiff misunderstands the purpose of Rule 502 and its separate subdivisions (b) and (d). See Fed. R. Evid. 502(b), (d). Defendants distinguish those subdivisions and argue a Rule 502(d) order is necessary because discovery involves an extensive amount of electronically stored information, there is a potential for each party to disclose privileged information, and any dispute that arises regarding privileged information will disrupt
the discovery process and necessitate the expenditure of significant time and resources by the parties. Since millions of pages of documents have already been produced in this case and supplemental productions are presently ongoing, Defendants argue a Rule 502(d) order will benefit both parties and ensure discovery is conducted efficiently. Analysis
Under Rule 26(c)(1), a party may move for a protective order from the Court. See Fed. R. Civ. P. 26(c)(1). The motion must include a certification that the movant has, in good faith, conferred or attempted to confer with affected parties in order to resolve the dispute without Court action. Id. If good cause is shown by the movant, the Court may issue an order to protect a party from annoyance, embarrassment, oppression, or undue
burden or expense, including an order specifying the terms for disclosures in discovery. See Fed. R. Civ. P. 26(c)(1)(B). Good cause requires a particular and specific demonstration of fact rather than a stereotyped and conclusory statement. See Harrisonville Tel. Co. v. Illinois Commerce Comm’n, 472 F. Supp. 2d 1071, 1078 (S.D. Ill. 2006) (quoting 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2035 (3d ed. 1998 & Supp. 2006)); accord Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981));
see also Andrew Corp. v. Rossi, 180 F.R.D. 338, 341 (N.D. Ill. 1998) (noting good cause under Rule 26(c) generally requires specific examples of articulated reasoning as opposed to stereotyped and conclusory statements); Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997) (noting, inter alia, good cause generally signifies a sound basis or legitimate need for judicial action). Relatedly, Rule 502 applies to disclosures of communications or information
covered by only the attorney-client privilege or the work-product privilege. See Fed. R. Evid. 502; DR Distrib., LLC v. 21 Century Smoking, Inc., No. 12-50324, 2022 WL 2905838, at *10 (N.D. Ill. 2022). Subdivision (d) of Rule 502 states: “A federal 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 federal
or state proceeding.” Fed. R. Evid. 502(d). As such, subdivision (d) of Rule 502 enables the Court, sua sponte or on a party’s motion, to enter an order that allows the parties to conduct and respond to discovery expeditiously and without the need for exhaustive pre- production privilege reviews. See Fed. R. Evid. 502 Addendum to Advisory Committee Notes, subdivision (d); RTC Indus., Inc. v. Fasteners for Retail, Inc., No. 17-3595, 2020 WL
1148813, at *6 (N.D. Ill. 2020); cf. DR Distrib., No. 12-50324, 2022 WL 2905838, at *11 (recognizing, even after the entry of a Rule 502(d) order, a “completely reckless disclosure” or a disclosure made “irrespective of the reasonableness of counsel’s privilege review” may nevertheless result in waiver, such that a counsel who produces documents without even a reasonable privilege review does so at his or her own risk). Such orders are “increasingly important” to limiting costs of privilege review and retention, especially
in cases of electronic discovery. See Fed. R. Evid. 502, Explanatory Note to Advisory Committee Notes (revised 11/28/2007). At the same time it limits these costs, subdivision (d) preserves the right to assert the attorney-client and work-product privileges to preclude the use of the information disclosed in discovery. See Fed. R. Evid. 502 Addendum to Advisory Committee Notes, subdivision (d); RTC Industries, No. 17-3595, 2020 WL 1148813, at *6. When entering a Rule 502(d) order, the Court has the authority
to include conditions that it deems appropriate under the circumstances presented in the case. See Fed. R. Evid. 502 Addendum to Advisory Committee Notes, subdivision (d).2 Here, the Court FINDS Defendants have demonstrated good cause for a Rule 502(d) order that protects each party from the potential undue burden or expense, pertaining to the inadvertent disclosure of communications or information protected by
the attorney-client privilege or the work-product privilege, and that specifies the related terms for disclosures in discovery. See Fed. R. Civ. P. 26(c)(1)(B). The Court is persuaded by Defendants’ representation, consistent with the nature of the record and allegations in this case, that discovery involves extensive electronically stored information, millions of pages of documents, and the potential for the inadvertent disclosure of privileged
information by each party. Consistent with the above principles, a Rule 502(d) order will
2Rule 502(d) serves the overarching purposes of Rule 502, namely, to resolve longstanding disputes about the circumstances under which subject matter waiver may apply and to respond to the widespread complaint that costs related to the protection against waivers of privileged information have become prohibitive due to concerns that any disclosure will operate as a subject matter waiver of all protected communications and information. See RTC Industries, No. 17-3595, 2020 WL 1148813, *5-6. ensure expeditious discovery and abate the time and resources expended by the parties during their privilege review and retention. A Rule 502(d) order will also tend to diminish
such expenditures if a dispute arises over privileged information disclosed in discovery. Therefore, consistent with this Memorandum and Order and the directives that follow, the Court GRANTS Defendants’ Motion. It is HEREBY ORDERED: 1. If, in connection with this litigation, information subject to a claim of attorney-client privilege or work-product privilege is disclosed, such disclosure of the privileged information shall not constitute a waiver or forfeiture of any claim of attorney-
client or work-product privilege that the parties would be entitled to assert with respect to the disclosed privileged information and its subject matter, whether in this litigation or in any other federal or state proceeding. 2. A party may assert, in writing, the attorney-client privilege and the work- product privilege with respect to specifically identified disclosed information through
the use of a privilege log consistent with Rule 26(b)(5). See Fed. R. Civ. P. 26(b)(5). The receiving party shall, within ten business days of receipt of that written assertion, return, sequester, or destroy all copies of the disclosed information and provide a certification that the disclosed information was returned, sequestered, or destroyed. The receiving party’s compliance with this section does not constitute an acknowledgement of or
acquiescence to the substantive claim of attorney-client or work-product privilege of the producing party. 3. Within ten business days of the notification that the disclosed information was returned, sequestered, or destroyed, the party claiming the attorney-client or work- product privilege shall produce a privilege log with respect to the disclosed information. If the producing party claims only a portion of the disclosed information is privileged,
then the producing party shall provide, along with the privilege log, a new copy of the disclosed information with the privileged portions redacted. 4. The receiving party may move the Court for an order compelling the production of the disclosed information (“Privilege Motion”). The Privilege Motion shall be filed under seal and shall not, based solely on the fact of production, assert waiver as a ground for entering such an order.
5. The party claiming attorney-client or work-product privilege retains the burden of establishing the privileged nature of any disclosed information. Nothing in this paragraph shall limit the right of any party to petition the Court for an in camera review of the disclosed information. 6. Notwithstanding the provisions of this Order, any disclosed information
protected by the attorney-client or work-product privilege (and all copies of such documents), or any disclosed information that bears a facial indication of the attorney- client or work-product privilege to the receiving party, shall immediately be returned to the producing party or destroyed by the receiving party. 7. During this litigation, the parties may identify certain document
repositories that may contain responsive documents in this matter. These document repositories may also contain documents subject to the attorney-client or work-product privileges. The provisions of this Order apply to any productions from such repositories. The parties will not argue, based solely on the fact of production, that the disclosed information within such document repositories constitutes a waiver. 8. In the event a party believes that documents have been improperly withheld from production based on an improper claim of attorney-client or work- product privilege, the party shall notify opposing counsel, in writing, of the basis for the claim. Counsel for the opposing party shall respond, in writing, within ten days and the parties shall meet and confer to try to resolve the dispute. If the parties cannot resolve the dispute, then the matter shall be brought before the Court for resolution. SO ORDERED. Dated: August 17, 2022. Ue i DAVID W.DUGAN United States District Judge