In Goldstein v. FDIC, No. 13-306 (D.D.C. May 23, 2013), the FDIC served subpoenas on the financial advisor to a bankruptcy trustee, seeking both documents and the advisor’s deposition. The financial advisor moved to quash on several grounds, including that his communications with the trustee were protected by the attorney-client privilege and his work was protected work product. The court observed that, although the advisor had been retained to assist the trustee with litigation, the advisor appeared to have acted in a business capacity as well. Therefore, some but not all of the documents may be privileged or protected. The court directed that the deposition proceed, and the advisor could assert privilege or work product on a question by question basis. Regarding withholding privileged documents, the court gave the advisor a choice:(1) prepare a detailed privilege log that complied with Federal Rule of Civil Procedure 26(5)(A)(ii) with sufficient detail “to enable other parties to assess the claim,” upon penalty of rejecting asserted privileges where the log proved to be insufficiently detailed; or (2) in lieu of a privilege log, negotiate a FRE 502(d) protective order that could be entered by the court, allowing the parties to go forward with discovery without waiving any claim of privilege over a particular document. The court noted that the use of FRE 502(d) might allow the FDIC to review more documents and obtain the information that it sought rather than through “a long and arduous deposition.”