In re Cellular Telephone Partnership Litigation, CA 6885-VCL

Special Discovery Master Jim Timmins sought to review eight documents AT&T had withheld as privileged to determine their relevance before completing his report.
Timmins proposed an in camera review; if relevant, AT&T would produce the documents to Timmins and plaintiffs subject to a court order preserving privilege under Delaware Uniform Rule of Evidence 510(f).
Plaintiffs objected, arguing that in camera review and any disclosure to the master would waive privilege and that Timmins’ relevance determinations would be final and not subject to de novo review by a judge.
The court examined Rule 510(f) (modeled on Federal Rule of Evidence 502(d)) and federal authorities permitting non-waiver orders to promote predictability and judicial economy (e.g., “quick peek” usages).
The court concluded it could enter a Rule 510(f) order to prevent waiver from both the master’s review and any subsequent production, and that Timmins could conduct an in camera review.
The court conditioned its grant on Timmins providing a brief explanation in his report whenever he deems documents not relevant, so a reviewing judge can assess that determination without revealing privileged substance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court may authorize the Special Master to review privileged documents in camera	Review by Timmins and disclosure to him would waive privilege	Court can authorize in camera review by the master to assess relevance	Court may permit in camera review by the Special Master under Rule 510(f)
Whether disclosure to the master or production after review would waive privilege	Any inspection/disclosure to master waives privilege	A Rule 510(f) order can preserve privilege and prevent waiver	Rule 510(f) may be used to prevent waiver from disclosure to master or limited production
Whether an in camera review by a special master (not the judge) is an acceptable procedure	Plaintiffs worry master will receive evidence they have not seen and that it forecloses judicial review	Timmins is a neutral decisionmaker; in camera review by masters is common and efficient	In camera review by the master is acceptable; master may review documents initially
Whether Timmins’ relevance determinations would be final and unreviewable	Plaintiffs contend master’s relevance rulings would be final and exceed his powers	Court can require explanatory findings to permit de novo judicial review	Timmins must include a brief explanation when he deems documents not relevant; court retains ability to review in camera if necessary

Atkins v. State, 523 A.2d 539 (Del. 1987) (Delaware authority cited for interpretive guidance)
Perry v. Berkley, 996 A.2d 1262 (Del. 2010) (Delaware authority cited for interpretive guidance)
DiGiacobbe v. Sestak, 743 A.2d 180 (Del. 1999) (discusses de novo review of master where applicable)
Jicarilla Apache Nation v. United States, 91 Fed. Cl. 489 (Fed. Cl. 2010) (used Rule 502(d) reasoning to address production/stay issues)