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