[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
Plaintiff filed two motions to seal certain evidence supporting its motion for attorney’s fees. Both motions sought to seal partially redacted law firm billing records from Plaintiff’s attorneys. “No objections were filed.” The motions were denied. Rock Spring Plaza II, LLC v. Investors Warranty of America, LLC, 2026 WL 3397215 (D. Md. Nov. 10, 2026)(Sullivan, J.). However, the Court sua sponte fashioned a Fed.R.Evid. 502 order.
The Court exhaustively analyzed the substantive principles governing sealing, including the public’s qualified right of access to judicial records. It held that Plaintiff had not carried its burden to justify sealing.
The Court then turned to the redactions and Fed.R.Evid. 502. Plaintiff had redacted privileged billing narratives. The Court wrote: “If Plaintiff chooses to file the partially redacted records on the public docket, the redactions themselves will present a separate problem. Plaintiff bears the burden of proving that the fees it seeks are reasonable. Defendants argue that they are unable to fully test the reasonableness of Plaintiff’s fees because certain narratives are redacted, and that the Court should either order Plaintiff to produce unredacted copies or deny any award of fees for the redacted entries.”
The Court denied Plaintiff’s suggestion of in camera review. It concluded that in camera review would require it to determine the issue without adversarial testing.
The Court wrote: “Defendants’ approach is also problematic. It would have Plaintiff choose between waiving privilege and forfeiting fees.”
Instead, the Court wrote:
Federal Rule of Evidence 502(d) offers a better approach. This rule provides that a federal court may order that the attorney-client privilege or work-product 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). Unlike an agreement between the parties, which “is binding only on the parties to the agreement,” see Fed. R. Evid. 502(e), an order under Rule 502(d) binds parties, non-parties, and other courts.
The Court intends to enter an order under Rule 502(d) that would allow Plaintiff to produce unredacted invoices to Defendants without waiving privilege or work-product protection in this case or in any other proceeding, as to Defendants or as to anyone else. Defendants would be permitted to fully review the narratives for the work they may be ordered to pay for. And the Court would be able to resolve the parties’ arguments about specific entries on a full record. The Court would not order Plaintiff to file the unredacted invoices on the public record but would instead permit Plaintiff to file them under seal. If Plaintiff does not agree to this proposal, the Court would likely order Plaintiff to re-redact its billing records and prepare a privilege log for each redacted entry. Plaintiff will be spared the time, effort, and (likely) uncompensated expense of doing so if it agrees to entry of a Rule 502(d) order.
Id. at *3 (emphasis added).
The Court proposed the following language for its order: “Pursuant to Federal Rule of Evidence 502(d), Plaintiff Rock Spring Plaza II, LLC’s production of billing records that may be protected by privilege or work-product protection shall not, for the purposes of this proceeding or any other federal or state proceeding, constitute a waiver by Plaintiff Rock Spring Plaza II, LLC of any privilege applicable to those documents, including the attorney-client privilege, attorney work-product protection, or any other privilege or protection recognized by law. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d). The provisions of Fed. R. Evid. 502(b) do not apply.”
The Court permitted “appropriate confidentiality restrictions, redaction for any entries for which Plaintiff does not seek recovery of fees, and other redactions of information not material to the issue of whether Plaintiff’s attorneys’ rates and hours were reasonable.”
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