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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 ...


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