HEAVIN v. OWENS-CORNING FIBERGLASS

February 3, 2004.

DUANE EARL HEAVIN, Plaintiff,
v.
OWENS-CORNING FIBERGLASS, Defendant

The opinion of the court was delivered by: DAVID WAXSE, Magistrate Judge

MEMORANDUM AND ORDER

Pending before the Court is Plaintiff's Motion to Compel Production of Documents (doc. 50). More specifically, Plaintiff requests the Court require Defendant to produce all documents listed in its privilege log. In support of this request, Plaintiff asserts Defendant procedurally waived the right to protection from disclosure of documents in its privilege log because (1) Defendant failed to timely file its privilege log; and (2) the amended privilege log ultimately served by Defendant fails to describe the nature of the documents in a manner that enables Plaintiff to assess the applicability of the privilege or protection. Plaintiff also asserts that, even if Defendant has not procedurally waived the right to protection from disclosure of documents in its privilege log, the documents listed simply are not protected from disclosure by either the attorney-client privilege or the work product doctrine.

For the reasons stated below, the Court finds Defendant did not waive the attorney-client privilege or work product protection based on untimely submission of its log, but finds the amended log fails to describe the nature of the documents in a manner that enables Plaintiff or the Court to assess the applicability of the privilege or protection. In the absence of evidence indicating bad faith on the part of Defendant, however, the Court will decline to find waiver and will order Defendant to submit a second amended privilege log as specifically set forth herein. Page 2

  Relevant Factual Background

 

06-27-03: Defendant serves Rule 26(a)(1) disclosures;

08-22-03: Plaintiff serves first written discovery;

09-22-03: Defendant serves responses to Plaintiff's first written discovery;

10-15-03: Defendant serves a privilege log for 68 documents;

10-20-03: Defendant serves supplemental disclosures;

10-20-03: Plaintiff requests more detailed privilege log; and

10-31-03: Defendant serves amended privilege log and explanatory letter.

Discussion

A. Timeliness of Privilege Log

  Plaintiff asserts Defendant procedurally waived work product and attorney-client privilege protection for every document listed in the privilege log based on Defendant's failure to timely provide the privilege log. It is true that Fed.R.Civ.P. 26(b)(5) requires the objecting party to expressly make a claim of privilege and to "describe the nature of the documents, communications, or things not produced . . . in a manner that, without revealing information itself privileged or protected, will enable [the] other part[y] to assess the applicability of the privilege or protection." It also is true that failure to follow the Federal Rules of Civil Procedure may result in waiver of the attorney-client privilege and/or work-product protection.*fn1 Although this result is not mandated by the federal rules, the Advisory Committee contemplated the sanction: "[t]o withhold materials without [providing notice as described in Rule 26(b)(5)] is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege. . . ."*fn2 Page 3

  Acknowledging the harshness of a waiver sanction, however, courts have reserved such a penalty for only those cases where the offending party committed unjustified delay in responding to discovery. Minor procedural violations, good faith attempts at compliance and other such mitigating circumstances bear against finding waiver.*fn3

  Here, Defendant served its privilege log on October 15, 2003, approximately 23 days after serving its September 22, 2003 discovery responses asserting protection based on work product and attorney-client privilege. When Plaintiff requested a more detailed privilege log on October 20, 2003, Defendant responded within ten days. Based on these circumstances, the Court finds a sanction of waiver too harsh; thus, Defendant is not deemed to have waived any protection for the documents listed in its privilege log based on the untimely submission of its log.

 B. Sufficiency of Privilege Log

  Plaintiff next maintains the amended privilege log ultimately served by Defendant fails to describe the nature of the documents in a manner that, without revealing information itself privileged or protected, enables Plaintiff to assess the applicability of the privilege or protection. For this failure to comply with applicable rules, Plaintiff requests the Court deem any privilege or protection waived.

  Rule 26(b)(5) provides as follows:

  When a party withholds information that is otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.*fn4 Page 4

  Defendant, as the party asserting objections based on work product immunity and attorney-client privilege, bears the burden of establishing that either or both apply.*fn5 Defendant must make a "clear showing" that the asserted objection applies.*fn6 To carry that burden, Defendant must "describe in detail" the documents or information sought to be protected and provide "precise reasons" for the objection to discovery.*fn7 In addition, Defendant must provide sufficient information to enable the court to determine whether each element of the asserted objection is satisfied.*fn8 A "blanket claim" as to the applicability of the privilege/work product protection does not satisfy the burden of proof.*fn9 Defendant's failure to meet this burden when the trial court is asked to rule upon the existence of the privilege is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made.*fn10

  Applying these standards, the Court finds Defendant's privilege log deficient. First and foremost, the log fails to identify the specific privilege/protection being asserted. It is not feasible to determine whether each element of an asserted privilege or protection is satisfied for an individual document when the privilege itself is not identified on a document-by-document basis. For this reason alone, the log is inadequate. But even if Defendant had not omitted this crucial information, the Court still would find the log deficient on grounds that the descriptions fail to include the Page 5 information necessary to determine whether the elements of either the attorney-client privilege or the work product protection have been met.

  1. Attorney-Client Privilege

  Rule 26(b)(5) requires Defendant to describe documents not produced in manner that, without revealing information itself privileged or protected, will enable Plaintiff to assess the applicability of the privilege or protection. In other words, Defendant must provide sufficient information to enable Plaintiff to determine whether each element of the asserted objection is satisfied.*fn11 Thus, with respect to Defendant's umbrella claim of protection based on the attorney-client privilege, the description of the documents within the privilege log must establish each of the following elements: (1) where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) the communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosures by the client, the legal advisor, or any other witness (8) unless the privilege is waived.*fn12

  Defendant's primary argument in support of attorney-client privilege protection is that because attorney Miles Mustain represented Defendant in the underlying worker's compensation claim, any document description that refers to Mr. Mustain automatically protects that document from disclosure by the attorney-client privilege. The Court rejects this argument. "Not every communication between an attorney and client is privileged, only confidential communications Page 6 which involve the requesting or giving of legal advice."*fn13 "The focal point of the protection afforded by the attorney-client privilege lies with `communications' between attorneys and their clients."*fn14 And, although the privilege protects disclosure of substantive communication between attorney and client, "it does not protect disclosure of the underlying facts by those who communicated with the attorney."*fn15

 

[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, "What did you say or write to the attorney?" but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.*fn16

Accordingly, if relevant facts are incorporated into an otherwise attorney-client protected document, the document still will be subject to disclosure after redaction of the privileged material.*fn17 A party cannot shield documents and/or facts from disclosure by combining them or interlacing them with privileged material; nonprivileged underlying factual information must be disclosed and the log must be specific enough for the Court and the opposing party to determine into which category the information falls.

  Turning now to the amended privilege log, the Court finds it unclear from many of the descriptions whether the documents sent to and received from attorney Miles Mustain imparted Page 7 (1) non-privileged underlying facts; (2) confidential substantive communications involving the requesting or giving of legal advice; or (3) both. Because Defendant failed to include in its log information specific enough for the Court to determine into which category the information falls, the Court is unable to determine whether the documents — or portions thereof — are protected from disclosure by the attorney-client privilege.

  Even if it turned out that all of the documents listed in the log contained only substantive communications between attorney and client and no underlying factual information, the Court finds that many of the descriptions provided still fail to establish the elements required to invoke the attorney-client privilege. Notably, the privilege protects only those confidential communications that involve legal advice.*fn18 The documents in the amended privilege log, however, generically are described as correspondence to and from attorney Miles Mustain that

• discuss Plaintiff's worker's compensation claim;

• discuss case strategy related to Plaintiff's worker's compensation claim; or

• discuss advantages and disadvantages related to settlement of Plaintiff's claim.

These descriptions fail to establish any connection between the subject of the communication and the rendering of legal — as opposed to, for example, insurance-related — advice.*fn19 Again, Defendant has failed to provide sufficient information to enable the Court to determine whether the documents in the amended log are protected from disclosure by the attorney-client privilege.

  Finally, many of the documents set forth in Defendant's privilege log that reference attorney Page 8 Miles Mustain were sent to and received from employees of Crawford & Company. In the cover letter sent with the amended privilege log, Defendant states "Crawford & Company was the independent contractor acting as Owen Coming's agent for the purpose of handling all worker's compensation claims."*fn20 An unsupported claim of agency relationship such as this, however, is insufficient for the Court to find Crawford & Company stands in the shoes of the client for purposes of confidential communications relating to legal advice.

  As an independent contractor handling Defendant's worker's compensation claims, it is likely that Crawford & Company reviewed and considered documents relating to Plaintiff's worker's compensation claim for a myriad of business reasons other than seeking out legal advice. For example, investigatory materials and other documents relating to Plaintiff's claims may have been created, collected and considered by Crawford & Company to determine whether and on what basis adjustment of the claim could be attempted.

  Simply put, the descriptions provided in the privilege log do not indicate whether the referenced communications to and from Crawford & Company were made to further the interests of Crawford & Company — or any principal of Crawford & Company — or whether they were made for the primary purpose of assisting Mr. Miles defend Owens-Corning in current (or the real and imminent threat of) adversarial litigation. Because Defendant has not provided this necessary information, the Court is unable to determine whether the documents in the amended log are protected from disclosure by the attorney-client privilege.

  2. Work Product Protection

  To establish work product protection, a party must show that"(1) the materials sought to be protected are documents or tangible things; (2) they were prepared in anticipation of litigation or for Page 9 trial; and (3) they were prepared by or for a party or a representative of that party."*fn21 If work product protection is what Defendant asserts, many of the documents within Defendant's privilege log fail to include sufficient information to establish each of these elements,

a. Prepared in Anticipation of Litigation

  The work product doctrine only applies to those documents and tangible things prepared in anticipation of litigation, and in order for the discovery limitation to apply, there must be a substantial probability that litigation will ensue at the time the documents were drafted.*fn22 "Certainly by implication the . . . rule precludes any idea of extending the work product doctrine to reports or statements, even if written, obtained by the client or his investigators which are not prepared under the supervision of an attorney in preparation for trial."*fn23

  The issue of whether documents were prepared in anticipation was extensively analyzed by Magistrate Judge Rushfelt in Marten v. Yellow Freight System, Inc.*fn24 The court stated:

The work product standard has two components. The first is what may be called the "causation" requirement. This is the basic requirement of the Rule that the document in question be produced because of the anticipation of litigation, i.e., to prepare for litigation or for trial. The second component is what may be termed a "reasonableness" limit on a party's anticipation of litigation. Because litigation can, in a sense, be foreseen from the time of occurrence of almost any incident, courts have interpreted the Rule to require a higher level of anticipation in order to give a reasonable scope to the immunity.

  The court looks to the primary motivating purpose behind the creation of the document to determine whether it constitutes work product. Materials assembled in the ordinary course of business or for other non-litigation purposes are not protected Page 10 by the work product doctrine. The inchoate possibility, or even the likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be "real and imminent." To determine the applicability of the work product doctrine, the court generally needs more than mere assertions by the party resisting discovery that documents or other tangible items were created in anticipation of litigation.*fn25

  In this case, Defendant's blanket claim (in the cover letter to the log) that "[t]he documents were not prepared in the normal course of business, but rather the primary motivating purpose in the preparation of all the documents was the direct defense of Mr. Heavin's ongoing worker's compensation litigation,"*fn26 is insufficient to establish work product protection. The only facts asserted by Defendant to support this blanket claim is that every document listed in the log was created and/or dated after Plaintiff filed his worker's compensation claim. The Court is not persuaded by this argument. Defendant has submitted no evidence to suggest that a claims file is opened only upon submission of a claim for worker's compensation benefits that Defendant intends to litigate. Investigatory materials and other documents relating to Plaintiff's worker's compensation claim may have been created, collected and considered in the normal course of business relating to settlement and/or adjustment of claims. More specifically, Defendant has failed to establish the documents in question were created, collected or considered under a real and imminent threat of actually litigating Plaintiff's claim.

  An investigation that is undertaken to determine whether there is coverage and whether the Page 11 claim should be paid is not undertaken in anticipation of litigation.*fn27 Defendant erroneously relies on the proposition that the filing of an administrative claim provides reasonable grounds for anticipating litigation sufficient to invoke work product protection.*fn28 There simply is no evidence to preclude the prospect that the documents in the amended privilege log would have been created, regardless of anticipated litigation.

  b. Prepared By or For a Party or Representative of that Party

  With regard to establishing that the documents in the log were prepared by or for a party or a representative of that party, the Court notes again that an unsupported claim of agency relationship is insufficient for the Court to find Crawford & Company is a representative of Defendant for purposes of the work product protection. The work product doctrine, which is embodied in Rule 26(b)(3) of the Federal Rules of Civil Procedure, protects from discovery documents, things and mental impressions of a party or his representative, particularly his attorney, developed for or in anticipation of litigation or trial.*fn29 The purpose of the doctrine is to permit attorneys to prepare for litigation with a "certain degree of privacy," and without undue interference or fear of intrusion or exploitation of one's work by an adversary.*fn30 It is not intended to protect investigative work unless done so under the supervision of an attorney in preparation for the real and imminent threat of litigation or trial. Defendant has failed to include sufficient information in the log for the Court to Page 12 determine whether each of the documents were created under the supervision of Mr. Mustain. Defendant's general allegations will not suffice.

  Even if Defendant had established that every single document within the log had been created under the supervision of Mr. Mustain, as noted above, work prepared in the ordinary course of business and inserted into such document may still be subject to disclosure after redaction of any privileged material. It would represent a retreat from the philosophy underlying the Federal Rules of Civil Procedure if aparty could shield documents and/or facts from disclosure by combining them or interlacing them with work product. The Advisory Committee Notes to the federal rule establishing work product protection also recognize this need: "In enforcing [the Rule 26(b)(3) protection of work product material], the courts will sometimes find it necessary to order disclosure of a document but with portions deleted."*fn31

 C. Waiver

  Based on the discussion above, the Court finds Defendant's amended privilege log fails to describe the nature of the documents in a manner that enables the Court to assess the applicability of either the attorney-client privilege or work product protection. For this failure to comply with applicable rules, Plaintiff requests the Court deem any privilege or protection waived. With regard to Plaintiff's request, it is well-settled that the party seeking to invoke work product immunity or attorney-client privilege has the burden to establish all elements of the immunity/privilege and that this burden "can be met only by an evidentiary showing based on competent evidence."*fn32 That burden "cannot be `discharged by mere conclusory or ipse dixit Page 13 assertions.'"*fn33 Here, Defendant fails to identify the specific privilege/protection asserted and fails to include in its privilege log the information and evidentiary support necessary to establish the claimed privileges as required by the Federal Rules of Civil Procedure. For this failure, the Court could find waiver and grant Plaintiff's Motion to Compel as it applies to the claimed privileged/protected documents. In the absence of evidence indicating bad faith on the part of Defendant in preparing the amended privilege log, however, the Court will decline to find waiver. Instead, the Court will deny Plaintiff's Motion to Compel and order Defendant to submit a second amended privilege log to Plaintiff.

 D. Conclusion

  In light of the above, it is hereby ordered that Plaintiff's Motion to Compel (doc. 50) is denied without prejudice to refiling as set forth below.

  It is further ordered that Defendant shall prepare and submit to Plaintiff a second amended privilege log. Said amended log shall be served on Plaintiff by February 6, 2004 and Defendant shall file a certificate of service verifying that the amended privilege log was served on Plaintiff. The amended privilege log shall contain a detailed description of the materials in dispute and the specific and precise reasons for its claim of protection from disclosure. The amended log shall include, at a minimum, the following information for each document withheld:

1. A description of the document (e.g., correspondence, memorandum, attachment);

2. Date prepared;

3. Date of document (if different from # 2);

  4. Identity of the person(s) who prepared the document; Page 14

 

5. Identity of the person(s) for whom the document was prepared and to whom the document and copies of the document were directed, including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney;

6. Purpose of preparing the document, including

• an evidentiary showing based on competent evidence supporting any assertion that the documents were prepared in the course of adversarial litigation*fn34 or in anticipation of a threat of adversarial litigation that was "real and imminent" (as opposed to materials that were prepared in an earlier and non-adversarial stage of the claims process for the purpose of determining whether there is coverage and whether the claim should be paid);

• an evidentiary showing based on competent evidence supporting any assertion that the subject of communications within the document relate to seeking or giving legal advice (as opposed to insurance or other non-legal advice); and

• an evidentiary showing based on competent evidence supporting any assertion that the documents do not contain or incorporate non-privileged underlying facts;

7. Number of pages of the document;

  8. Basis for withholding discovery of the document (i.e., the specific privilege or protection being asserted); and Page 15

 

9. Any other pertinent information necessary to establish the elements of each asserted privilege, including

• identification of the entity who contracted with Crawford & Company to handle Defendant's worker's compensation claims;

• identification of the specific responsibilities and duties assigned to Crawford & Company as such an independent contractor;

• identification of the entity who assigned Crawford & Company these specific responsibilities and duties; and

• identification of the entity with whom Crawford & Company must consult for any additional authority that may be needed to perform its assigned responsibilities and duties.

  It is further ordered that, by March 12, 2004, counsel for the parties shall confer within the meaning of D. Kan. Rule 37.2 and attempt to resolve the parties' dispute regarding privilege issues. In the event the parties are able to resolve their dispute, Plaintiff shall so notify the Court. In the event the parties are unable to resolve their dispute,

  It is further ordered that Plaintiff shall, by March 19, 2004, file a renewed Motion to Compel with any arguments he wishes to make regarding the sufficiency of the second amended privilege log and the validity of the asserted privileges/protection. In addition, Defendant shall, by March 19, 2004, file a copy of its second amended privilege log and provide to the Court (but not Plaintiff) copies of all documents listed in the amended privilege log for the Court's in camera inspection. Defendant shall have until March 26, 2004 to respond to Plaintiff's renewed Motion. The Court will rule on any and all outstanding privilege and work product protection issues after this briefing is complete. Page 16

  IT IS SO ORDERED.